author:
PORITSKY, Judge.
     KALITOWSKI, Judge

text:
    STATE FARM FIRE AND CASUALTY, et al., Appellants, v. AQUILA INC. d/b/a People’s Natural Gas, f/k/a UtiliCorp United Inc., d/b/a People’s Natural Gas/Energy One, Respondent, Northern Pipeline Construction Company, Respondent, Robert Sauer, et al., Defendants, George Rucker, et al., Nominal Defendants.
    No. A04-1816.
    Court of Appeals of Minnesota.
    June 14, 2005.

      Bradley J. Ayers, David A. Wikoff, Robert W. Vacearo, Flynn, Gaskins & Bennett, L.L.P., Minneapolis, MN, for appellants State Farm Fire and Casualty and Auto Owners Insurance Company.
    Jeremy R. Stevens, Bird & Jacobsen, Rochester, MN, for appellant Joan Hern-lem.
    Dale M- Wagner, Bassford Remele, Minneapolis, MN, for respondent Aquila Inc.

      Scott P. Drawe, Drawe & Heisick, Minneapolis, MN, for respondent Northern Pipeline Construction Company.
   OPINION

PORITSKY, Judge.

Appellants, owners and insurers of property damaged by the explosion of a natural-gas pipeline, brought suit against respondents, one of which is the owner of the pipeline, and the other is the firm that installed it. The district court granted summary judgment in favor of respondents on the ground that appellants’ suits were barred by Minn.Stat. § 541.051 (2004), the statute of repose for improvements to real property. Appellants contend that the district court erred (1) in determining that the natural-gas pipeline at issue constituted an “improvement to real property” for the purposes of Minn. Stat. § 541.051; (2) in granting summary judgment for respondents where appellants alleged negligence and negligence per se, not merely as to the installation of the natural-gas pipeline, but also as to the inspection, maintenance, and/or repair of the natural-gas system; and (3) in determining that no negligence existed even though a prima facie showing by appellants was all that was required, discovery had only just begun, and substantive negligence issues were not briefed by the parties.

FACTS

In November 1990, respondent Aquila Inc., owner of a natural-gas pipeline at Hallmark Terrace Trailer Park, contracted with respondent Northern Pipeline Construction Company to replace the existing pipeline. The existing main lines and service lines (i.e., the lines that run from the main lines to the customers’ homes) were made of steel. That pipeline was to be abandoned and Northern Pipeline was to install a new pipeline made of polyethylene. According to the work order, the old pipeline was replaced because of the hazardous location of the steel main and service lines. Appellants allege that the polyethylene pipeline was installed under driveways and roads using a pneumatic boring tool, and further allege that during the installation process, Northern Pipeline installed the new pipeline through an existing clay tile sewer line. The parties do no dispute the district court’s finding that Aquila owned, and still owns, the polyethylene pipeline system. Northern Pipeline completed its work in December 1990. Thereafter, Aquila maintained ownership and control over the pipeline system. No further maintenance or repairs were performed on the pipeline until 2002.

In early 2002, Hallmark Terrace hired Robert Sauer, doing business as Drain-Rite, to repair sewer drains that were blocked by tree roots. On February 13, 2002, Drain-Rite used a trap-and-drain auger to unclog the sewer pipes. Appellants claim that in doing so, Drain-Rite’s auger struck and ruptured the intersecting gas line, causing natural gas to migrate through the sewer pipes and into several of the manufactured homes at Hallmark Terrace. The gas built up and ignited, resulting in an explosion that destroyed property either owned or insured by appellants.

In November 2002, appellants brought suit against respondents and Drain-Rite, but eventually settled with Drain-Rite. Appellants claim that respondents were negligent in the “inspection, maintenance, repair and/or installation of the natural gas system.” Appellants also claim that respondents were negligent per se for violating “applicable codes and standards regarding the inspection, maintenance, repair and/or installation of the natural gas system.” Respondents brought motions for summary judgment, arguing that the suit was time-barred by the ten-year statute of repose for improvements to real property under Minn.Stat. § 541.051 (2004).

Appellants brought a cross-motion for summary judgment, seeking an order that the statute of repose was inapplicable because the pipeline was not an improvement to real property for the purposes of Minn.. Stat. § 541.051, but was instead merely an addition to Aquila’s natural-gas distribution system. Relying on Johnson v. Steele-Waseca Coop. Elec., 469 N.W.2d 517, 519 (Minn.App.1991), review denied (Minn. July 24, 1991), appellants argued that “even if the newly installed polyethyl-' ene gas pipes constitute an ‘improvement,’ which [appellants] dispute, this improvement is an addition to Aquila’s distribution system.” Appellants further argued, quoting Johnson, 469 N.W.2d at 520, that even if the pipeline is an improvement to real property, “Minn.Stat. § 541.051 does not protect the installer/owner from its own ... negligence.”

The district court held that appellants’ suit was time-barred as to both respondents by Minn.Stat. § 541.051, and granted respondents’ motions for summary judgment. In doing so, the district court first ruled that Aquila’s pipeline constituted an improvement to real property. The court then determined that appellants’ injuries arose out of the defective and unsafe condition of the pipeline. Finally, the district court considered section 541.051, subd. 1(c), which creates an exception for suits based on the negligence of owners or persons in possession of an improvement to real property. The court ruled that because Aquila did not have any notice of an unsafe condition, appellants failed to present evidence that Aquila was negligent in the maintenance, operation, or inspection of the pipeline, and therefore the exception did not apply. As to Northern Pipeline, the court ruled that the exception did not apply, because Northern Pipeline relinquished all control over the pipeline system after installation in 1990 and never owned or possessed it. This appeal follows.

■ ISSUES

I. Did the district 'court err in deciding that the natural-gas pipeline constituted an improvement to real property under Minn. Stat. § 541.051 (2004)?

II. Did the district court err in determining that no negligence existed?

ANALYSIS

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). In doing so, this court' views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The construction and applicability of a statute of limitations is a question of law subject to de novo review. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

I.

Appellants contend that the district court erred in holding.that the natural-gas pipeline owned by Aquila was an improvement to real property under Minnesota’s ten-year statute of repose for injuries arising out of improvements to real property. See Minn.Stat.- § 541.051 (2004). This statute provides in relevant part:

(a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property ... arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property ... more than ten years after substantial completion of the construction.....
(c) Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

Id., subd. 1.

The Minnesota Supreme Court has adopted a common-sense interpretation of the phrase “improvement to real property” as used in Minn.Stat. § 541.051.Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn.1977). In doing so, the supreme court has defined an “improvement to real property” as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Id. (quotation omitted). Under this common-sense analysis, we have applied the phrase “improvement to real property” broadly. See Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 496 (Minn.App.2003) (holding that a storm sewer system is an improvement to real property), review denied (Minn. Mar. 16, 2004); Patton v. Yarrington, 472 N.W.2d 157, 160 (Minn.App.1991) (holding that smoke detectors are improvements to real property), review denied (Minn. Aug. 29, 1991); O’Connor v. M.A. Mortenson Co., 424 N.W.2d 92, 94 (Minn.App.1988) (holding that an unfinished stairway is an improvement to real property), review denied (Minn. July 28, 1988).

Appellants contend that their suit is not time-barred by Minn.Stat. § 541.051 because the gas pipeline in question was not an improvement to real property; instead, they argue, it was part of Aquila’s natural-gas distribution system. Appellants cite our decision in Johnson v. Steele-Waseca Coop. Elec., 469 N.W.2d 517 (Minn.App.1991), review denied (Minn. July 24, 1991), as controlling. In Johnson, the plaintiffs built a barn on their dairy farm and contracted with the local power distributor to install new electrical equipment and wiring to the barn. Id. at 518. The utility also installed a center pole and transformer on the plaintiffs’ land to bring power to the farm. Id. at 518-19. Shortly after moving cattle into the new barn, the plaintiffs noticed several health problems with the herd that led to the loss of cattle. Id. at 518. A veterinarian suggested that stray voltage could be the cause of the health problems. Id. The plaintiffs filed suit, claiming that the utility “was negligent not to repair, not to prevent, and not to warn of the risk of stray voltage.” Id. at 520. The district court held that the plaintiffs’ suit was time-barred by Minn. Stat. § 541.051, but we reversed. Id. at 520-21.

In Johnson, we drew a distinction between (1) “the installations added to the barn and other buildings owned by the [plaintiffs],” and (2) “the pole and pendant equipment, which [the utility] owns and uses to distribute electrical power.” Id. at 519. We held that the former — those items owned by the customer — were improvements to real property under Minn. Stat. § 541.051. Id. But we held that items owned by the utility were not such improvements. Id. In doing so, we explained that the utility

installed an electric pole and transformer which stands independently on [plaintiffs’] property and serves the distribution purposes of the cooperative. This equipment enables the utility to increase its electric service to [the] farm. Rather than being an improvement to [plaintiffs’] property, this equipment is an addition to [the utility’s] distribution system.

Id.

We further noted, in Johnson, that the plaintiffs were not .alleging a defect in the electrical equipment attached to the barn, but that the electrical service itself was defective because of the stray voltage. Id. at 520. In concluding that, with respect to the utility, the center pole and transformer were not improvements to real property, we stated:

Minn.Stat. § 541.051 iimits the time to bring an action in order to protect from suits those who install or create the improvement and then surrender control of it. We do not interpret Minn.Stat. § 541.051 to shelter from liability an electric power company that installs and maintains control of an electric pole and transformer,. especially when the purpose is to distribute power.

Id. at 520.

Thus, the central facts in Johnson that apply here are that the transformer and center pole (1) were owned and controlled by the utility, and (2) were part of the utility’s distribution system. We first consider the district court’s decision to grant summary judgment in favor of Aquila. Appellants argue that Johnson controls, and therefore the court erred. Respondents make a number. of arguments in support of their position that Johnson does not control.. Respondents first argue that “to the extent Johnson purports to exclude owners of improvements from the protection of Minnesota’s statute of repose, it. is antagonistic to Minnesota jurisprudence.” In support of this contention, respondents cite a number of cases in which, they claim, “no Minnesota appellate court has followed [Johnson’s] holding.” But the cases cited by respondents do not deal with a utility-owned distribution network.

We recognize that in Kemp v. Allis-Chalmers Corp., we said that “[a]n electrical transformer is an improvement to real property for the purposes of the statute.” 390 N.W.2d 848, 850 (Minn.App.1986) (citing Lovgren v. Peoples Elec. Co., 380 N.W.2d 791, 794-95 n. 5 (Minn.1986)). But Kemp is of questionable authority as applied here, because the improvement at issue in Kemp was not a transformer, but electrical cables clamped to a starter compartment of a waste gas fan located inside a pellet plant. Kemp 390 N.W.2d at 849. It is not clear from the opinion even if a transformer was part of an improvement or involved in the plaintiffs injury. And Kemp’s citation of Lovgren is not entirely on point, because the improvement at issue in Lovgren was a not a transformer, but a transformer vault, located inside of a steel mill. Lovgren, 380 N.W.2d at 793. In any event, in neither Kemp nor Lovgren was there a showing that a utility owned the improvement at issue, or that the improvement was part of a utility-owned distribution network. Therefore we conclude that neither case conflicts with our reading of the court’s holding in Johnson.

Next, respondents attempt to distinguish the facts of this case from Johnson. Respondents point out that the pipeline, unlike the center pole and transformer in Johnson, was underground and not accessible for routine inspection and maintenance. But respondents cite no authority for the proposition that a gas company is relieved from a duty of due care merely because its pipeline is underground Respondents further state that the plaintiffs in Johnson alleged an ongoing tort of defective electrical service while the appellants in this case allege defective construction. But as we demonstrate below in section II, appellants have made a showing that Aquila was negligent in its maintenance, operation, and inspection of the pipeline.

The record contains Aquila’s documentation on terms and conditions of its service, indicating that “[t]he point of delivery and the point where Company ownership and maintenance of service pipe ends, shall be at the outlet side of the Company’s meter.” Thus it is clear that the gas pipeline was owned and controlled by Aquila and served the utility’s distribution purposes by enabling Aquila to deliver natural gas to the residents of the trailer park. We therefore hold that Johnson controls, and we conclude that with respect to Aquila, the gas pipeline was not an improvement to real property under Minn.Stat. § 541.051 but an addition to the utility’s distribution system. Therefore, we reverse the district court insofar as the court ruled that section 541.051 bars appellants’ claim against Aquila.

Unlike Aquila, Northern Pipeline relinquished all ownership and control of the pipeline after installation. Moreover, the pipeline was not part of Northern Pipeline’s distribution system; nor, in fact, did it serve any commercial purpose for Northern Pipeline after installation. It follows that with respect to Northern Pipeline, the pipeline is an improvement to real property for the purposes of Minn.Stat. § 541.051, and the statute bars appellant’s suit against Northern Pipeline. Therefore, we affirm the district court’s granting of summary judgment in favor of Northern Pipeline.

II.

Appellants contend that the district court erred (1) in dismissing appellants’ claims on summary judgment where appellants alleged negligence and negligence per se against respondents, not merely as to the installation of the natural-gas pipeline, but also as to the inspection, maintenance, and/or repair of the natural-gas system; and (2) in determining that no negligence existed even though a prima facie showing by appellants was all that was required, discovery had only just begun, and substantive negligence issues were not briefed by the parties.

After holding that Minn.Stat. § 541.051 applied, the district court examined the statute’s exception under subdivision 1(c), which states that “[n]othing in this section shall apply to actions for damages resulting from the negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.” Minn.Stat. § 541.051, subd. 1(c). With respect to Aquila, the district court held that because appellants failed to provide evidence of notice, subdivision 1(c) did not apply; specifically, the court said Aquila “had no reasonable notice of an existing or potential danger nor did it possess any information that-would suggest to a person of ordinary care and prudence that some part of the polyethylene system was unsafe for. the transportation ... of gas.” The district court held that Northern Pipeline could not be held liable under subdivision 1(c) because Northern Pipeline had no subsequent involvement as owners or controllers of the pipeline after installation in 1990. We agree as to Northern Pipeline. With respect to Aquila, the application of the exception in subdivision 1(c) is rendered moot by our holding that Minn.Stat. § 541.051 does not bar appellants’ claims against Aquila.

Notwithstanding the conclusion that section 541.051 does not bar appellants’ claims against Aquila, there remains the issue of whether appellants have made a showing of Aquila’s negligence sufficient to withstand summary judgment. Appellants first make the procedural argument' that the district court was premature to grant summary judgment when “only preliminary discovery had occurred, and the discovery deadline set by the scheduling order, when issued, was several months ahead of when the court ruled on respondents’ summary judgment motions.” But Minn. R. Civ. P. 56.06 provides that “the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Appellants do not indicate that they requested a continuance from the district court for further discovery. Moreover, appellants not only opposed respondents’ motions for summary judgment, but brought their own motion for summary judgment.

Appellants next turn to the merits and argue that they made a showing of negligence sufficient to withstand respondents’ motions for summary judgment. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is n'o genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. To withstand a defendant’s motion for summary judgment, a plaintiff claiming negligence must make a prima facie case of negligence, which simply means a case that prevails in the absence of evidence invalidating it. See Patton v. Newmar Corp., 538 N.W.2d 116, 119-20 (Minn.1995) (holding the district court properly .granted summary judgment when plaintiff failed to establish a prima facie case of liability); Trudeau v. Sina Contracting Co., 241 Minn. 79, 87, 62 N.W.2d 492, 498 (1954) (defining prima facie negligence). “Prima facie negligence means that evidence qf negligence which, unexplained or. uneontradieted and standing alone, appears to be sufficient to establish the fact. In other words, it is evidence which suffices to establish the fact unless rebutted, or until overcome, by other evidence.” Trudeau, 241 Minn. at 87, 62 N.W.2d at 498.

In the ordinary course of things, gas does not escape if those responsible for its management use proper care. See Gould v. Winona Gas Co., 100 Minn. 258, 266, 111 N.W. 254, 257 (1907) (noting that “at common law and apart from the act of Congress an explosion is prima facie evidence of negligence”); see also Manning v. St. Paul Gaslight Co., 129 Minn. 55, 57, 151 N.W. 423, 424 (1915) (stating that Gould “goes to the proposition that the manufacturer and distributor of illuminating gas is held in damages for the escape of gas on the principle of negligence ... and that the escape of this agency in highly destructive quantities is prima facie evidence of negligence”).

Here, the district court correctly noted, “Minnesota courts have continuously held that gas companies owe a duty to act with due care with regards .to. the inspection and maintenance of its main and service' lines.” But solely on the ground that Aquila “never had notice of any existing or potential danger,” the court found no evidence of negligence. The court did not discuss whether, apart from the lack of notice, appellants had made a showing of a prima facie case of Aquila’s negligence.

In ruling that lack of notice to Aquila precluded a showing of negligence, the district court relied on Ruberg v. Skelly Oil Co., 297 N.W.2d 746 (Minn.1980), and Wilson v. Home Gas Co., 267 Minn. 162, 125 N.W.2d 725 (1964). In Ruberg, 297 N.W.2d at 751, the supreme court stated that “[l]iability for damages caused by a gas leak exists where the gas supplier, having reasonable notice of an existing or potential danger, negligently performs an inspection or repair, or fails to inspect, repair, or shut off the gas.” In Wilson, the supreme court stated that “[t]he duty to inspect does not require a system of inspection ‘at all times’ but rather a duty to make reasonable inspections.” 267 Minn. at 172, 125 N.W.2d at 732.

But Wilson also makes a distinction between pipes owned by the customer and pipes owned by the gas company. The supreme court stated:

The duty to inspect does not require a system of inspection ‘at all times’ but rather a duty to make reasonable inspections, and then, as to appliances not owned or controlled by the [gas company], only after a reasonable notice of the existence of danger. To apply any other rule would make the gas supplier an insurer if anything went wrong with any of the appliances over which it had no control. Recognizing that escaping gas is a dangerous substance, we have consistently held that the supplier of gas is not an insurer of customers for injury or damage resulting therefrom, unless it can be shown that the gas has escaped from a pipe over which the [gas company] was charged with responsibility.... In other words, a greater duty arises as to pipes and appliances that are the responsibility of the [gas company], like its gas lines.... Thus ... we applied a strict rule of liability when gas escapes from a pipe over which the [gas company] has control and for which it is responsible, but the same rule does not apply to gas escaping from appliances owned by the customer and maintained by him.

Id., at 172-73,125 N.W.2d at 732 (citations omitted) (emphasis added).

. In Ruberg, the supreme court was addressing the notice requirement only in cases where the utility did not own or control the pipeline:

A supplier of gas must exercise a degree of care commensurate with the danger in a situation. With regard to that duty we have said: It may be generally stated that, where a gas company does not install or own the service lines on private property, and exercises no control over them, it is not responsible for the condition in which they are maintained and is not liable for damages caused by a leak therein of which it does not have notice. And a gas company, in the absence of notice of defects in the service lines, is not required to make inspections of the lines on private property when the lines are not owned by it or are under its control.

297 N.W.2d at 750-51 (citation and quotation omitted).

Here, Aquila owned and controlled the pipeline. As a consequence, the fact that Aquila never received notice of a defect or dangerous condition in its line does not defeat appellants’ negligence claim.

In addition to the presumption that gas does not escape from pipelines if those responsible exercise proper care, there is the undisputed fact that for 11 years Aquila’s gas line ran through a clay tile sewer. Appellants have alleged that Aquila was negligent in the inspection, maintenance and repair of its lines. Aquila argues that its gas line was “buried underground and was not readily accessible for inspection without significant expense” and that “the polyethylene pipeline system was specifically designed not to need any routine maintenance or inspection.” But these allegations raise a fact issue of whether they were a reasonable excuse for Aquila’s failure to detect and remedy a dangerous condition. See Manning, 129 Minn. at 56-58, 151 N.W. at 424-25 (affirming a jury verdict against a gas company for a wrongful death caused by a leak in a pipeline buried 27 inches below the surface). We conclude that appellants established a pri-ma facie case of Aquila’s negligence.

DECISION

We affirm the district court’s decision to grant summary judgment in favor of Northern Pipeline. But the district court erred in ruling as a matter of law that Minn.Stat. § 541.051 bars appellants’ claims against Aquila and that appellants failed to present evidence of Aquila’s negligence. Therefore, we reverse the district court’s decision granting summary judgment in favor of Aquila.

Affirmed in part, reversed in part, and remanded.

KALITOWSKI, Judge

(concurring in part, dissenting in part).

I concur that the district court properly granted summary judgment in favor of Northern Pipeline under Minn.Stat. § 541.051 (2004). But I respectfully dissent from the determination that the district court erred in granting summary judgment in favor of Aquila. The district court correctly held that the ten-year statute of repose in Minn.Stat. § 541.051 applies to Aquila and that the exception to the statute of repose in Minn.Stat. § 541.051, subd. 1(c), does not apply on this record.

In a well-reasoned opinion, the district court properly applied Minn.Stat. § 541.051 to appellants’ action against Aquila and determined the action was time-barred. The court found that, under the plain language of the statute and numerous cases interpreting the statute, the new polyethylene pipe was “an improvement to real property” because it (1) enhanced the trailer park’s “capital value and its ability to safely and efficiently provide natural gas to its tenants”; and (2) “was built to extend the useful life of the new natural gas system and to improve its performance over that of the original steel pipeline system.” The evidence in the record supports these findings.

Contrary to appellants’ argument, neither Aquila’s ownership and control of the pipeline, nor the fact that Aquila is a utility that uses the pipeline to supply appellants with natural gas, provide a basis for a determination that the pipeline is not an improvement to real property. The statute contains no such exceptions.

In attempting to graft this exception on to Minn.Stat. § 541.051, appellants rely on a 1991 decision by this court, Johnson v. Steele-Waseca Coop. Elec., 469 N.W.2d 517 (Minn.App.1991). Appellants argue that Aquila’s pipeline cannot be an improvement to real property because the pipeline is owned by Aquila and used to distribute natural gas. .‘But Johnson, which has never been cited for this holding, is not applicable here because by its own terms, Johnson addressed an alleged improvement that “raises a new issue of liability for stray voltage, an issue virtually unexplored by Minnesota’s judiciary.” Id. at 519. Moreover, unlike the facts here, where the improvement did not stand alone, in Johnson, the court specifically distinguished “earlier cases involving improvements attached to buildings” by pointing out that the alleged improvements at issue were “an electric pole and transformer which stands independently on appellants’ property and serves the distribution purposes of the cooperative.” Id. And finally, unlike the findings of the district court here, the Johnson court concluded that “[rjather than being, an improvement to appellants’ property, this equipment is an addition to respondent’s . distribution system.” Id. Johnson does not apply to the facts here. Because the district court properly applied the statute and appropriate caselaw, and determined that the pipeline was an improvement to real property, I would affirm.

On this record I would also affirm the district court’s determination that Aquila is entitled to summary judgment on appellants’ claim that Aquila was negligent in maintaining, operating or inspecting the improvement to real property. Importantly, other than making a general allegation of negligence in their complaint, appellants did not present the district court with any facts establishing ongoing negligence by Aquila. And mere averments are not sufficient to survive summary judgment. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997).

In addition, the presumption that “gas does not escape from pipelines if those responsible exercise proper care” does not apply to establish a prima facie case of Aquila’s negligence here because: (1) it is undisputed that the gas leak at issue was caused when Drain-Rite, another defendant who has entered into a settlement with appellants, operated an auger that struck and ruptured the gas line; and (2) appellants merely alleged negligence but offered no evidence as to the standard of care that was breached and no facts indicating how Aquila was negligent in maintaining, operating or inspecting the pipeline.

I would affirm the district court in all respects.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . "A statute of repose starts the limitation period for bringing an action from the date of [completion of an improvement], unlike a statute of limitations which starts from the date of injury. A typical statute of repose will specify a presumptive number of years after which, an action cannot be brought.” Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 830 (Minn.1988). Under Minn.Stat. § 541.051, a party is barred from bringing suit more than ten years after substantial completion of an improvement to real property.

      . In its brief, Northern Pipeline states that it joins in the analysis of Aquila on the issue of whether Aquila's natural-gas pipeline is an improvement to real property.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2005 ND 108
    Dennis S. MARTIN, Deborah J. Martin, and Sheila R. Wells, Plaintiffs and Appellants v. Tracy (Martin) BERG, Rick Berg, and Margaret Martin, individually, and as personal representative of the Estate of Stephen Martin, Defendants and Appellees.
    No. 20050001.
    Supreme Court of North Dakota.
    June 6, 2005.

      Daniel J. Dunn (argued), Maring Williams Law Office, and Thomas' Paul Martin (appeared), Fargo, N.D., for plaintiffs and appellants.
    Malcolm H. Brown, P.C., Bismarck, N.D., for defendants and appellees.
   SANDSTROM, Justice.

[¶ 1] Dennis S. Martin, Deborah J. Martin, and Sheila R. Wells (“Plaintiffs”) appealed from an order on motions for summary judgment and a judgment dismissing their complaint against Tracy (Martin) Berg, Rick Berg, and Margaret Martin, individually, and as personal representative of the Estate of Stephen Martin (“Defendants”). We affirm.

I

[,¶ 2] Plaintiffs are children of Stephen Martin and his first wife, Erna Martin, who died in 1958. Stephen Martin married Margaret in 1961. They had one child, Tracy, who was born in 1961.

[IT 3] On October 23, 1973, Stephen Martin executed a will providing in Article IV:

• I give, devise and bequeath all my property ... as follows:
(a) To my wife, Margaret N., if she survives me for thirty days, or
(b) If my said wife does not survive me for thirty days, to my children, namely, Dennis S„ Martin, Sheila Rae Martin, Steven H. Martin, Deborah Jean Martin and Tracy Jane Martin, who survive me, in equal shares, share and share alike.

On that same day, Margaret Martin executed a will providing in Article IV:

I give, devise and bequeath all my property ... as follows: .
(a) To my husband, Steve, if he survives me for thirty days, or
(b) If my said husband does not survive me for thirty days, to my afore-named child, Tracy Jane Martin; and my aforenamed stepchildren, namely, Dennis S. Martin, Sheila Rae Martin, Steven H. Martin and Deborah Jean Martin, who survive me, in equal shares, share, and share alike.

[¶ 4] On January 31, 1985, Stephen Martin executed a will that revoked his previous will and provided, in part:

A. Surviving Spouse. I give and devise all of the rest, residue and remainder of my property ... to my spouse, Margaret N. Martin, if she shall survive me.
B. Children. In the event that my spouse does not survive me, I give and devise all of my property ... to my children, Dennis S. Martin, Sheila Rae Davis, Steven H. Martin, Deborah Jean Martin and Tracy Jane Martin, in five equal shares.

On that same day, Margaret Martin executed a will that revoked her previous will and provided, in part:

A. Surviving Spouse. I give and devise all of the rest, residue and remainder of my property ... to my spouse, Steve Martin, a/k/a Stephen Martin, if he shall survive me.
B. Children. In the event that my spouse does not survive me, I give and devise all of my property ... to my child, Tracy Jane Martin, and my stepchildren, Dennis S. Martin, Sheila Rae Davis, Steven H. Martin, and Deborah Jean Martin, in five equal shares.

[¶ 5] After Stephen Martin died in 1988, Margaret Martin began conveying real estate she and Stephen Martin had owned to Tracy Berg and Rick Berg. Plaintiffs sued, alleging, among other things, that Stephen and Margaret Martin had entered into an agreement for the disposition of their property upon their deaths, which was reflected in Article IV of their October 23, 1973, reciprocal wills, which “were executed pursuant to an agreement between the testators that the plaintiffs would be treated equally upon the surviving spouse’s death.” They alleged that in making inter vivos transfers to Tracy Martin Berg and Rick Berg, Margaret Martin “circumvented the agreement regarding the equal disposition of property upon the surviving spouse’s death and the irrevocation of the reciprocal Wills.” The Plaintiffs sought specific performance of the agreement between Stephen and Margaret Martin, imposition of a constructive trust upon the assets owned by Stephen Martin at his death, an order enjoining further transfers of property owned by Stephen Martin at his death, an accounting, an appraisal of property transferred, appointment of a new personal representative for the Estate of Stephen Martin, damages, attorney fees, costs, and disbursements.

[¶ 6] In an order on motions, for summary judgment, the court concluded that when Margaret Martin survived Stephen Martin, “his entire estate became hers,” and ruled:

The Court finds Margaret became the sole owner of ' all of the assets of Steph[e]n’s estate, that their wills do not constitute a binding contract limiting Margaret’s ability to convey assets to anyone, that no constructive trust was created, and that Margaret has acted within her rights and power in conveying assets to anyone she chooses, including Tracy.

The district court granted the Defendants’ motion for summary judgment and denied the Plaintiffs’ motion for summary judgment. A judgment dismissing the Plaintiffs’ complaint was entered on December 20, 2004.

[¶ 7] On appeal, the Plaintiffs contend the district court erred in failing to follow North Dakota law, in denying their motion for summary.judgment, in refusing to impose a constructive trust upon the property Stephen Martin owned at his death, in dismissing 'their amended complaint, and in failing to address their claims against Margaret Martin for breach of fiduciary duty, misrepresentation, and deceit.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 30.1-02-02 and 27-05-06. The appeal ' was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. .§§ 30.1-02-06.1 and 28-27-01.

II

[¶ 9] This case was decided on cross-motions for summary judgment.

The standard of review for summary judgments is well established. In Zuger v. State, 2004 ND 16, ¶ 7, 673 N.W.2d 615 (citations omitted), we explained:
Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. “Whether summary judgment was properly granted is ‘a question of law which we review de novo on the entire record.’ ” On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.
Mere speculation is not enough to defeat a motion for summary judgment, and a scintilla of evidence is not sufficient to support a claim. Id. at ¶ 8.

State Fire & Tornado Fund v. North Dakota State Univ., 2005 ND 75, ¶8, 694 N.W.2d 225.

A

[¶ 10] Plaintiffs contend the district court erred in failing to follow North Dakota law, specifically Quandee v. Skene, 321 N.W.2d 91 (N.D.1982); Kuhn v. Kuhn, 281 N.W.2d 230 (N.D.1979); and O’Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649 (1950), dealing with irrevocable agreements to devise property in an agreed-upon manner, and N.D.C.C. §§ 9-03-25, 9-06-01, 9-06-02, and 9-09-05, dealing with the formation or alteration of contracts.

B

[¶ 11] When Stephen and Margaret Martin executed new wills specifically revoking their 1973 wills in 1985, contracts relating to agreements about the disposition of property upon death were governed by N.D.C.C. § 30.1-09-13, which provides:

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after July 1, 1975, can be established only by:
1. Provisions of a will stating material provisions of the contract;
2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
3. A writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

That statute tightened the methods for proving contracts concerning succession. Jordan v. Anderson, 421 N.W.2d 816, 820 (N.D.1988). Stephen and Margaret Martin’s 1985 wills do not state material provisions of a contract to treat all of the Martin children equally upon the surviving spouse’s death or an express reference to such a contract, and Plaintiffs have. not presented “[a] writing signed by the decedent evidencing” such a contract.

C

[¶ 12] “The purpose of construing a will is to ascertain the testator’s intent.” Jordan, 421 N.W.2d at 818. “Where the language of a will is clear and unambiguous, the testator’s intent must be determined from the language of the will.” Id. “Whether or not an ambiguity exists in a will is a question of law.” Id. at 819. “This court will determine for itself the correct construction of an unambiguous will.” Id.

[¶ 13] Stephen Martin’s 1985 will clearly and unambiguously provided that Margaret Martin was to receive “all of the rest, residue and remainder” of his property if she survived him. She survived him. The only reasonable conclusion we can draw from our review of the 1973 wills executed by Stephen and Margaret Martin, together with the other evidence relied upon by the Plaintiffs, is that they do not reflect an agreement by Stephen and Margaret Martin to treat all of the Martin children equally upon the surviving spouse’s death. Therefore, as the trial court concluded, “Margaret became the sole owner of all of the assets of Steph[e]n’s estate,” other than a relatively small amount of money left to a stepdaughter of his.

Ill

[¶ 14] We conclude that the trial court did not err in denying the Plaintiffs’ motion for summary judgment and in granting the Defendants’ motion for summary judgment. We further conclude a judgment dismissing the Plaintiffs’ complaint was properly entered.

[¶ 15] Because we have concluded that there was no error in denying the Plaintiffs’ motion for summary judgment or in granting the Defendants’ motion for summary judgment, and a judgment dismissing the Plaintiffs’ complaint was properly entered, resolution of the Plaintiffs’ other issues is unnecessary. ‘We need not address questions, the answers to which are unnecessary for the determination of an appeal.” Huff v. North Dakota State Bd. of Med. Exam’rs, 2004 ND 225, ¶ 15, 690 N.W.2d 221.

IV

[¶ 16] The judgment of the district court is affirmed.

[¶ 17] GERALD W. VÁNDE WALLE, C.J., WILLIAM F. HODNY, S.J., DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.

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


author: PER CURIAM.

text:
    2005 ND 109
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Charles T. EDIN, a Person Admitted to the Bar of the State of North Dakota Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Charles T. Edin, Respondent.
    Nos. 20050010, 20050011.
    Supreme Court of North Dakota.
    June 7, 2005.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, N.D., for petitioner.
    Charles T. Edin, pro se.
   PER CURIAM.

[¶ 1] Disciplinary Counsel of the Disciplinary Board of the Supreme Court filed objections to a hearing panel’s report, which concluded Charles T. Edin violated N.D.R. Prof. Conduct 1.3, 1.4, and 1.16 because he failed to act diligently in handling his client’s cases; he did not promptly respond to his client’s reasonable requests for information; and his abrupt withdrawal of representation adversely affected his clients. The hearing panel recommended Edin be suspended from the practice of law for six months and pay the costs of the disciplinary proceeding. Edin admitted each of the alleged violations. We decline to fully adopt the hearing panel’s recommendation. We order Edin suspended from the practice of law from the date of his original interim suspension, September 24, 2003, to the date this opinion is filed. We further order him to pay the costs and attorney’s fees for the disciplinary proceeding.

I

[¶ 2] Charles Edin was admitted to practice as an attorney at law in the courts of North Dakota on April 16, 1984, and his name has appeared, since that date on the roll of attorneys admitted to the North Dakota Bar, as maintained by the Supreme Court. Edin was placed on.interim suspension from. the practice of law on September 24, 2003, under Rule 3.4(b), N.D.R. Lawyer Discipl. Disciplinary Board v. Edin, 2003 ND 152, 669 N.W.2d 118. Under N.D.R. Lawyer Discipl. 3.4(b), a trustee was appointed to protect Edin’s clients’ interests on September 30, 2003. See N.D.R. Lawyer Discipl. 6.4.

[¶ 3] On October 1, 2003, in compliance with N.D.R. Lawyer Discipl. 6.3, which requires an attorney placed on interim suspension to give notice to “[a]ll clients being represented in pending matters,” this Court received a letter from Edin with several attachments indicating he had complied with the rule and offering an explanation for his actions. The Court then informed Edin that his reinstatement would be considered upon receipt of an assessment from his physician of his ability to function as a practicing attorney.

[¶ 4] On January 30, 2004, Edin filed a letter and attachment requesting the Court lift the' interim suspension. On February'4, 2004, Disciplinary Counsel responded, asserting the interim suspension should remain in effect. On February 18, 2004, this Court ordered the matter- referred to the Disciplinary Board for expeditious hearing under N.D.R. Lawyer Dis-cipl. 5.1(c) and a determination be made in conjunction with any other matters presently pending with the Disciplinary Board. A Notice of Appointment of Hearing Panel was filed on February 24, 2004, and served on Edin March 1, 2004. ’Edih filed his Answer to Petition for Hearing' on August 11, 2004. A Notice of Hearing was served on Edin September 13, 2004, and the hearing was held on November 19, 2004. "

.. [¶ 5] The hearing panel heard the testimony of Jolene Samuelson, Kary Hoff, and Julie and Gerard Feist, all former, clients of Edin. The hearing panel report, filed January 10, 2005, concluded Edin violated N.D.R. Prof. Conduct 1.3, Diligence, because he did not act with reasonable diligence in his representation of either Hoff or the Feists; N.D.R. Prof. Conduct 1.4, Communication, because he did not make a reasonable effort to keep Hoff, the Feists, or Samuelson reasonably, informed of the status of their respective cases; and N.D.R. Prof. Conduct 1.16, Declining or Terminating Representation, because he abruptly ended his representation of Samuelson while her matter was unresolved. The hearing panel also found “[ojther clients ... would be willing and happy to have Edin do legal work for them in the future.”

[¶ 6] Edin admitted to the alleged violations, asserting his actions resulted from his disappointment in the legal system over another case in which he was involved and from depression caused by that case.

[¶ 7] The hearing panel noted, in deciding an appropriate sanction, they considered Standard 9.32(c) and (h), North Dakota Standards for Imposing Lawyer Sanctions, which expressly include “personal or emotional problems” and “mental disability or impairment” as mitigating factors. The hearing panel also considered 9.32(a), absence of prior disciplinary record; 9.32(e), full and free disclosure and cooperative attitude; and 9.32(g), character or reputation, as mitigating factors. Standard 9-22(1), substantial experience in the practice of law, was considered as an aggravating factor. The hearing panel further noted that Edin’s “demeanor and testimony at the hearing reflects remorse and an understanding of the nature of the misconduct.” The hearing panel recommended that Edin be suspended from the practice of law for six months, with credit for time served under his interim suspension, and that he pay the costs and attorney’s fees for the disciplinary proceeding.

[¶ 8] On January 27, 2005, Disciplinary Counsel objected to the hearing panel’s recommendation, arguing Edin be suspended from the practice of law for two years, with credit for time served under interim suspension; Edin be required to pay restitution to certain former clients in the total amount of $20,000; and Edin be required to pay the costs and attorney’s fees for the disciplinary proceeding.

II

[¶ 9] We review disciplinary proceedings de novo on the record. In re Disciplinary Action Against McKechnie, 2003 ND 170, ¶ 7, 670 N.W.2d 864. We accord due weight to the hearing panel’s findings, conclusions, and recommendations, but we do not act as a mere rubber stamp of the hearing panel’s decision. Id. Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Id: Each disciplinary case must be considered upon its own facts to decide what discipline, if any, is warranted. Id.

Ill

[¶ 10] Disciplinary Counsel argues the hearing panel’s recommended sanctions are not appropriate. Disciplinary Counsel contends the hearing panel should have recommended that Edin be suspended for two years and that he pay restitution to his injured clients.

A

[¶ 11] In determining the appropriate sanctions for violations of the Rules of Professional Conduct, we are guided by the North Dakota Standards for Imposing Lawyer Sanctions. In re Disciplinary Action Against Edwardson, 2002 ND 106, ¶ 21, 647 N.W.2d 126. Under N.D. Stds. Imposing Lawyer Sanctions 2.0, potential sanctions which may be imposed include suspension, restitution, and assessment of costs. We consider the following factors in imposing sanctions: “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” N.D. Stds. Imposing Lawyer Sanctions 3.0.

[¶ 12] Disciplinary Counsel argues that under Standard 4.41(a) or 4.42, North Dakota Standards for Imposing Lawyer Sanctions, Edin’s ethical violations amount to abandonment of his practice warranting a two-year suspension. Standard 4.41 provides:

Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client.

Standard 4.42 provides:

Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

[¶ 13] Disciplinary Counsel argues a two-year suspension more accurately reflects the seriousness of the misconduct, while allowing for consideration of the mitigating factors found by the hearing panel. Disciplinary Counsel further argues that accepting the hearing panel’s six-month suspension, with credit for time served, makes Edin eligible for immediate reinstatement without proving rehabilitation, whereas a two-year suspension would require Edin to show his fitness to practice before reinstatement. See N.D.R. Lawyer Discipl. 4.5(A).

[¶ 14] Edin’s conduct violated N.D.R. Prof. Conduct, Rule 1.3, Diligence; Rule 1.4, Communication; and Rule 1.16, Declining or Terminating Representation, and Edin has admitted the violations. Considering the seriousness of the violations of these rules and the factors under the Standards for Imposing Lawyer Sanctions, we conclude suspension is the appropriate sanction for Edin’s violations. We conclude, however, the term of suspension should be from his September 24, 2003, interim suspension to the date this opinion is filed. This means that Edin must prove rehabilitation in order to establish his qualification for reinstatement. See N.D.R. Lawyer Discipl. 4.5(A).

B

[¶ 15] Disciplinary Counsel argues Edin should be required to pay restitution to his former clients because Edin ignored his clients for months and only contacted each to inform them he was quitting the practice of law after he was placed on interim suspension. Edin counters, arguing Disciplinary Counsel has not shown by clear and convincing evidence the work billed to his clients was not accomplished, the billings were not reasonable, or that any of the work he performed needed to be re-accomplished by subsequent representatives.

[¶ 16] Disciplinary Counsel cites Disciplinary Board v. Giese, 2003 ND 82, 662 N.W.2d 250; Disciplinary Board v. Butz, 2002 ND 155, 652 N.W.2d 358; and Disciplinary Board v. Robb, 506 N.W.2d 714 (N.D.1993), as examples of cases in which restitution was imposed. In each of these cases, however, clear and convincing evidence was presented indicating the client had paid for services they did not receive.

[¶ 17] This case is distinguishable from the cited cases because the record does not contain, nor has Disciplinary Counsel presented, clear and convincing evidence showing Edin did not perform the work for which he billed his clients or that his conduct resulted in a monetary loss to his clients. Therefore, we conclude Edin is not required to pay restitution to his former clients.

[¶ 18] We order that Charles T. Edin be suspended from the practice of law for the term beginning with his September 24, 2003, interim suspension to the date this opinion is filed and that he pay the costs and attorney’s fees for the disciplinary proceedings of $1,738.51.

[¶ 19] GERALD W. VANDE WALLE, C.J., ZANE ANDERSON, D.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 20] The Honorable ZANE ANDERSON, D.J., sitting in place of KAPSNER, J., disqualified,


author: GILBERTSON, Chief Justice.

text:
    2005 SD 58
    Sylvia F. MIDZAK, Plaintiff and Appellee, v. Andrew Z. MIDZAK, Defendant and Appellant.
    No. 23280.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 15, 2005.
    Decided May 11, 2005.

      Angela M. Colbath, Rapid City, South Dakota, Attorney for plaintiff and appellee.
    Paul Winter, Winter & Koch, Rapid City, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Wife sought and was granted divorce on the grounds of extreme emotional cruelty. Wife was awarded the marital home, along with most of the marital assets. The trial court awarded no alimony at the time of the divorce, but reserved the right to award alimony in the future if the circumstances of the parties required it. Primary physical custody of the parties’ minor child was awarded to Husband contingent on finding a suitable place to live. No award of child support was made. Husband appealed the grant of the divorce on the grounds of extreme emotional cruelty, the division of marital assets, the future award of alimony, and the failure to award child support. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Sylvia Midzak''(Sylvia) and Andrew Midzak" (Andrew)' were married in 1980. At the time of the marriage, Andrew had served in the.United States Air Force for four years and was twenty-twó; ■Sylvia was twenty-one. Over the next sixteen years, Andrew’s career required the family to move to several different duty stations, with the family eventually settling in Rapid City, South Dakota. During the marriage the parties had three children, Nicholas born in' 1983, Joseph born fifteen months later, and G.M. born in 1988. Sylvia began operating a craft business from the family home after the birth of the parties’ last .child. Sylvia began working outside the home in 2000, and eventually began working three part-time jobs.

[¶ 3.] After twenty years of service in the Air Forcé, Andrew retired with a full pension in the fall of 2000. In March of 2001, Andrew took a job overseas in Hungary as a flight controller, a job that paid approximately $81,000 per year. The contract position was intended to last approximately two years. Testimony was given at trial by Andrew and by Nicholas that the family discussed and agreed that the purpose behind Andrew taking the position in Hungary was to make enough money to pay for the college education of all three children.

■ .[¶ 4.] Andrew returned to Rapid City three times for visits during the two and one-half year period he was employed in Hungary,, and the family traveled to Hungary for one visit. In October 2003, Andrew returned from Hungary at the conclusion of the contract term. Andrew was unemployed at the time, he returned, but had been offered another air controller position in Turkey at a salary of $100,000. Andrew offered testimony at trial that he was unable to obtain comparable employment in the Rapid City area. Andrew’s only local employment opportunities were as a common laborer at a starting wage of nine dollars and fifty cents per hour.

[¶ 5.] On November 13, 2003, Sylvia filed for divorce alleging irreconcilable differences or in the alternative extreme emotional cruelty. Andrew denied the allegation of extreme emotional cruelty, and contested the divorce. Trial on the matter was held on January 29, and February 6, 2004. At trial, Andrew appeared pro se and Sylvia was represented by counsel. The following exchange occurred just prior to the conclusion of Sylvia’s case-in-chief:

THE COURT: When is the last time you told your wife that you loved her?
ANDREW: Probably three years ago.
THE COURT: When is the last time you told your husband you loved him?
SYLVIA: I told him last summer.
ANDREW: Well, see, that’s a contradiction here—
THE COURT: No, there is no contradiction.
ANDREW: There are emails about being forced to come over to Hungary to spend some time with me—
THE COURT: For purposes of the divorce, I’ve heard absolutely enough.
MS. COLBATH: I have no other evidence on any issue.
ANDREW: Sir, when you say for purposes of the divorce, you’re making a decision on the divorce?
THE COURT: I’m going to let you testify, but I just want you to know that what I have heard so far is I believe that your personality and your demeanor and your response to your wife is in fact authoritarian in nature and I believe that from what I have seen in the courtroom this afternoon on the topics we have discussed, that you and your wife have met the requirements of the law to establish there has been grievous mental suffering inflicted upon her by you, so I’m going to let you continue, you can testify to convince me that I am wrong, but I have a feeling, sir, that your testimony will be more of the fact that she’s wrong and her perceptions are incorrect and she has misunderstood.
ANDREW: I have always suggested or tried to benefit the family by my directions and suggestions.
THE COURT:' I think I’ll hear you tell me that again, because you tell me that in your questioning of all the witnesses.
ANDREW: Is there any sense for me to stand up?
THE COURT: Well, that’s up to you. I’m just telling you what I have seen in four hours leads me to conclude that they have definitely in my mind now established the statutory grounds for divorce.
ANDREW: Does that somehow finalize the child support—
THE COURT: No—
ANDREW: Custody?
THE COURT: No, not at all ...

[¶ 6.] The trial judge then engaged in a conversation with Sylvia’s counsel as to exhibits, and Sylvia’s proposed alimony and property award. Andrew then asked the trial court if he could continue cross-examining Sylvia:

ANDREW: Do I still have questioning for her or not?
THE COURT: I think I have heard enough. You haven’t given your testimony.

[¶ 7.] Andrew elicited testimony from his two oldest children, and then gave his own testimony. As Andrew gave his testimony, the court transitioned him from testifying about the facts surrounding the marriage to the matter of marital assets and valuations.

[¶ 8.] The trial court turned to the matter of reviewing financial exhibits and establishing valuations on property. The trial court indicated at that time that the $5,000 Sylvia removed from a joint checking account prior to filing for divorce for purposes of purchasing a new car was included in the property list, and the new car would be listed as well. However, in the trial court’s findings of fact and conclusions of law neither asset was listed.

[¶ 9.] The trial court did not include Andrew’s retirement pay as a marital asset, but instead allocated $570.00 of the total monthly benefit of $968.31 to Sylvia, leaving $376 per month for Andrew. The trial court then included inheritance gifts of $20,000 made to Andrew by his mother in the list of marital assets.

[¶ 10.] In its written findings of fact and conclusions of law, the trial court stated it had awarded the marital home to Sylvia, as Andrew had unequivocally ceded numerous items of property to Sylvia during the proceedings. The trial court’s final division of the marital assets as contained in the findings of fact and conclusions of law resulted in an award of $128,100 to Sylvia and $57,000 to Andrew.

[¶ 11.] The trial court awarded custody of the minor child G.M. to Andrew, but no child support was awarded. The award of physical custody was conditioned on Andrew finding a suitable place to reside in Rapid City. The need for a new residence was created by the trial court’s decision to award the marital home to Sylvia. The trial court did calculate Sylvia’s living expenses and income, including the $570.00 awarded per month from Andrew’s retirement pay. No similar calculation was undertaken for Andrew’s living expenses.

[¶ 12.]. In its conclusions of law, the trial court held that Andrew had inflicted grievous mental suffering upon Sylvia during the marriage, and granted Sylvia’s- petition for divorce. The court then reserved the right to grant an award of alimony in the event that the parties’ circumstances changed. The cohrt held its division of property was fair and equitable as a matter of law, and that Andrew made a free and voluntary waiver to any claim of much of the marital property:

[¶ 13.] Andrew appealed raising four issues for our review:

1. Whether it was error for the trial court to state from the bench during the trial that the court had tentatively decided the question of granting the divorce in favor of Sylvia before hearing Andrew’s case-in-chief.
2. Whether the trial court abused its discretion in distributing the marital property.
3. Whether it was error to reserve the right to award alimony to Sylvia.
4. Whether it was error for the trial court not to order child support.

STANDARD OF REVIEW

[¶ 14.] The trial court’s findings of fact establishing grounds for divorce are not disturbed on appeal absent clear error. Hybertson v. Hybertson, 1998 SD 83, ¶ 8, 582 N.W.2d 402, 404 (citing Osman v. Keating-Osman, 521 N.W.2d 655, 657 (S.D.1994)). “Clear error is shown only when, after a review of all the evidence, ‘we are left'with a definite and firm conviction that a mistake has been made.’ ” New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶4, 597 N.W.2d 424, 425 (quoting Cleveland v. Tinaglia, 1998 SD 91, ¶ 16, 582 N.W.2d 720, 724.)). We give the trial court’s opportunity to judge the credibility of witnesses and to weigh their testimony due regard when reviewing the trial court’s findings of fact. Meldrum v. Novotny, 2002 SD 15, ¶ 18, 640 N.W.2d 460, 463 (citing Langerman v. Langerman, 336 N.W.2d 669, 670 (S.D.1983)). We review the trial court’s application of law to fact under the de novo standard of review, with no deference to the circuit court’s decisions. Mundlein v. Mundlein, 2004 SD 25, ¶ 5, 676 N.W.2d 819, 821 (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25) (citations omitted).

[¶ 15.] Our standard of review for challenges to a trial court’s alimony award is well settled. Evans v. Evans, 1997 SD 16, ¶ 31, 559 N.W.2d 240, 247(citing Dussart v. Dussart, 1996 SD 41, ¶ 9, 546 N.W.2d 109, 111; DeVries v. DeVries, 519 N.W.2d 73, 77 (S.D.1994)). We apply the abuse of discretion standard to alimony awards, and will not disturb the trial court’s decision unless it clearly appears that the trial court abused its discretion. Id.

[¶ 16.] The abuse of discretion standard of review is also applied to property settlements. Id. ¶ 23, 559 N.W.2d at 245 (citing Vander Pol v. Vander Pol, 484 N.W.2d 522, 524 (S.D.1992); Kanta v. Kanta, 479 N.W.2d 505 (S.D.1991); Johnson v. Johnson, 471 N.W.2d 156 (S.D. 1991); Fox v. Fox, 467 N.W.2d 762 (S.D.1991)). “The omission of assets which should properly be included as marital property is an abuse of discretion.” Id. (citing Gibson v. Gibson, 437 N.W.2d 170, 171 (S.D.1989)) (citations omitted). Additionally, a trial court must consider the alimony and property division together. Id. ¶ 31, 559 N.W.2d at 247 (citing Kappenmann v. Kappenmann, 479 N.W.2d 520, 523 (S.D.1992); Ryken v. Ryken, 461 N.W.2d 122, 127 (S.D.1990)).

[¶ 17.]Similarly, this Court will not disturb the award or denial of child support unless it clearly appears from the record that the trial court abused its discretion. Billion v. Billion, 1996 SD 101, ¶ 14, 553 N.W.2d 226, 230 (citing Vander Pol, 484 N.W.2d 522) (citations omitted). This Court has statutory authority to revise all orders and decrees “touching the alimony and maintenance of a spouse, and for the custody, education, and support of the children ..., including those which are stated to be in the discretion of the court.” SDCL 25-4-46.

ANALYSIS AND DECISION

[¶ 18.] 1. Whether it was error for the trial court to state from the bench during the trial that the court had tentatively decided the question of granting the divorce in favor of Sylvia before hearing Andrew’s case-in-chief.

[¶ 19.] The plaintiff in a civil proceeding bears the burden of proving every material allegation' in his or her complaint. Farmers’ State Bank of Turton v. Van Houten, 52 S.D. 528, 532, 219 N.W. 206, 207 (1928) (citing Scott Co. v. Scheidt, 35 N.D. 433, 160 N.W. 502 (1916)). A plaintiff is required to establish a prima facie showing, meaning sufficient evidence which would entitle the plaintiff to recover if the defendant produced no evidence. Peters v. Lohr, 24 S.D. 605, 610, 124 N.W. 853, 855 (1910) (citation omitted). The burden of persuasion rests throughout the litigation on the party asserting the affirmative of a particular issue, although the burden of production may shift from party to party as the case progresses. Gordon v. St. Marys Healthcare Center, 2000 SD 130, ¶ 24, 617 N.W.2d 151, 158 (quoting Hayes v. Luckey, 33 FSupp2d 987, 990 (N.D.Ala.1997)). After a plaintiff makes a prima facie showing of the issue in contention, the defendant who enters a general denial must then present testimony, or the plaintiff will prevail on the claim by virtue of the prima facie showing. Peck v. Peck, 51 S.D. 157, 164, 212 N.W. 872, 875 (1927). Thus, the defendant who enters a general denial is said to have the burden of advancing with testimony, or the burden of production. Id.

[¶20.] The trial court could have perhaps been more articulate in its comments from the bench at the close of Sylvia’s case-in-chief. However, a fair reading of the proceeding indicates the trial court was attempting to inform Andrew that Sylvia had satisfied her requirement that she present evidence to the court to constitute a prima facie case on the issue of divorce. The trial court was attempting to inform Andrew that it was now his evidéntiary opportunity and responsibility to rebut that prima facie case. We affirm on the trial court’s grant of the divorce to Sylvia.

[¶ 21.] 2. Whether the trial court abused its discretion in distributing the marital property.

[¶ 22.] South Dakota is an “all property state,” meaning that “all property of either or both divorcing parties is subject to equitable division by the court, regardless of title or origin.” Evans, 1997 SD 16, ¶ 23, 559 N.W.2d at 245 (citing Endres v. Endres, 532 N.W.2d 65, 68 (S.D.1995) (quoting Radigan v. Radigan, 465 N.W.2d 483, 486 (S.D.1991))). The trial court’s discretion to divide property between the former spouses must be soundly and substantially based on evidence. Id. (citing Gibson, 437 N.W.2d at 171; Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984); Owen v. Owen, 351 N.W.2d 139 (S.D.1984)). We have repeatedly held that retirement accounts and pensions, including military pensions, must be treated as marital assets and divided between the parties. Gibson, 437 N.W.2d at 171 (citing Caughron v. Caughron, 418 N.W.2d 791 (S.D.1988); Hautala v. Hautala, 417 N.W.2d 879 (S.D.1988); Arens v. Arens, 400 N.W.2d 900 (S.D.1987); Stubbe v. Stubbe, 376 N.W.2d 807 (S.D.1985)).

[¶ 23.] In the instant case, evidence was introduced that Sylvia removed $5,000 from a joint checking account to purchase a new vehicle.' However, it is unclear from the record whether the withdrawal occurred prior to or after Sylvia filed for divorce. Despite the ample evidence presented by Sylvia herself of the origin of the funds and the subsequent purchase, the trial court did not include a finding of fact as to the whether they were marital assets-to be included in the property division, or Sylvia’s separate assets. The assets are simply unaccounted for in the final, analysis..,At the very least, the trial court should include the car and its loan in the listing of marital assets and liabilities,, and make an award of both to Sylvia. Regardless, of whether or not the loan value exceeds the book value of the car, the decree should include the fact as determined by the trial court that Andrew will not be liable for the debt incurred for the loan on the car and that the asset belongs to Sylvia.

[¶ 24.] In its findings of fact, the trial court determined that Andrew freely, voluntarily and knowingly waived his rights to the marital residence and other marital property during the trial. However, the evidence does not unequivocally indicate such a waiver was made with regard to the -marital home. The -trial court took testimony first from Sylvia regarding the value of the marital home, and then later in the trial from Andrew. The trial court then told Andrew the marital home was “to be awarded to the Plaintiff.” After the fact, Andrew merely replied “Fine.” It is not clear if Andrew was acknowledging the trial court’s valuation, its decision to award the home to Sylvia, waiving rights to the property as found by the court or merely acknowledging he heard what the trial court has said. The trial court abused its discretion in not properly determining the status of all assets first as either separate or marital, and then making an equitable distribution of all assets determined to be marital in nature.

[¶ 25.] 3. Whether it was error to reserve the right to award alimony to Sylvia.

[¶ 26.] A trial court may modify an award of periodic alimony. Saxvik v. Saxvik, 1996 SD 18, ¶ 11, 544 N.W.2d 177, 180. However, a trial court loses jurisdiction to award alimony in the future if the trial court “found no basis for an award of alimony to begin with.” Id. ¶ 15. This is so because a court cannot “modify ‘what never existed.’ ” Id. (citing Cameron v. Cameron, 31 S.D. 335, 340, 140 N.W. 700, 701-02 (1913)).

[¶ 27.] In the instant case, the trial court did not award Sylvia alimony and gave as its reason Andrew’s unemployment. The trial court then proceeded to “reserve the right to - award alimony to [Sylvia] if [Andrew] becomes employed.”

[¶ 28.] The trial court is without jurisdiction to amend a non-existent alimony award at some point in the future if it denies alimony at the time of the divorce trial and does not expressly reserve the right to award it in the future. As the trial court recognized the modest financial circumstances Andrew found himself at the time of trial but also his likely potential to again regain employment with a significant income, it did not abuse its discretion in reserving unto itself the option to award alimony in the future. See Cameron, 31 S.D. 335, 140 N.W. 700.

[¶29.] 4. Whether it was error for the trial court not to order child support.

[¶ 30.] The South Dakota child support statutory scheme requires that “the combined monthly net incomes of both parents shall be used in determining the obligation and divided proportionately between the parents based upon their respective net incomes.” SDCL 25-7-6.2 (emphasis added). The trial court is required to calculate the parents’ monthly net income, which is equal to gross income less allowable deductions, as codified at SDCL 25-7-6.B and 25-7-6.7. Deviations from the support obligation schedule at SDCL 25-7-6.2 are possible, but must be raised by the parties in order to be considered by the trial court. SDCL 25-7-6.10. Additionally, deviations may be made “only upon the entry of specific findings” on any of the statutory factors included in SDCL 25-7-6.10. Id.

[¶ 31.] Neither party raised the issue of a deviation from the standard schedule in SDCL 25-7-6.2. Nor did the trial court take evidence and make specific findings on any of the eight factors that permit a deviation under SDCL 25-7-6.10. The trial court abused its discretion by failing to follow the mandatory provisions of the South Dakota child support statutory scheme.

[¶32.] We affirm the divorce and reverse the trial court and remand the case for proper fact finding and application of the laws of South Dakota on property division and child support.

[¶ 33.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . As an example, Andrew stipulated that Sylvia receive one half of his Military retirement or $570 per month.

      . In Saxvik, we concluded that where a trial court originally awards alimony of a type that can be modified in the future, it retains jurisdiction to so modify. 1996 SD 18, ¶ 11, 544 NW2nd at 179. This would include the authority to reduce it to zero in the future should circumstances justify this. Id. ¶ 11-12. A subsequent reduction to zero would not deny the trial court the jurisdiction at a further point from re-instating it. Id. However, we made it clear that this modification authority does not apply where the trial court refuses to award alimony to begin with as part of the divorce proceeding. Id. ¶ 15, 544 NW2nd at 180 (citing Cameron, 31 S.D. 335, 140 N.W. 700 (1913)).

      . The trial court entered the following finding of fact on this point:
      [Andrew] currently has only prospective employment, but is currently unemployed therefore alimony cannot be awarded at this time. However, [Sylvia] has significant monthly obligations and has far lower earning capacity than [Andrew], The Court reserves the right,to award alimony to [Sylvia] if [Andrew] becomes employed.
      The trial court then made the appropriate specific reservation unto itself of the right to award future alimony:
      The court reserves the right to grant an award of alimony in the event that present circumstances change. In that event, an award of alimony may be appropriate in accord with SDCL 25-4-41, given the circumstances of the parties.

      . SDCL 25-7-6.10 provides in relevant part:
      Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:
      (1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;
      (2) Any financial condition of either parent which would make application of the schedule inequitable;
      (3) The federal income tax consequences arising from claiming the child as a dependent;
      (4) Any special needs of the child;
      (5) For agreements entered into prior to July 1, 1986, if it is established by clear and convincing evidence, that debts or property were exchanged for child support and it appears equitable to continue such arrangement;
      (6) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;
      (7) The obligation of either parent to provide , for subsequent natural children or stepchildren. However, an existing support order may not be modified solely for this reason; or
      (8) The voluntary act of either parent which reduces that parent’s income.
      (emphasis added).


author: ZINTER, Justice.

text:
    2005 SD 60
    Russ J. QUICK and ZR Consulting, Inc., Plaintiffs and Appellants, v. Rollyn H. SAMP, as Personal Representative of the Estate of John E. Burke, Defendant and Appellee.
    No. 23319.
    Supreme Court of South Dakota.
    Considered on Briefs March 21, 2005.
    Decided May 11, 2005.

      Thomas M. Issenhuth of Arneson, Issen-huth & Parent, LLP, Madison, for plaintiffs and appellants.
    William P. Fuller, Susan M. Sabers of Woods, Fuller, Shultz and Smith, PC, Sioux Falls, for defendant and appellee.

      . After the commencement of this action, Burke died. Rollyn H. Samp, Personal Representative of Burke’s estate, was substituted as the defendant.

   ZINTER, Justice.

[¶ 1.] Russ J. Quick and ZR Consulting, Inc. brought this malpractice action against their former attorney, John Burke. The malpractice allegedly occurred during Burke’s representation of Quick in a prior suit against a third-party. Quick alleged malpractice on two theories: (1) attorney negligence in preparation of the complaint; and, (2) fraud in Burke’s preparation of a forged document that was used to correct a problem caused by the defective complaint. In this action, Burke’s Personal Representative moved for summary judgment alleging that Quick was in pari delic-to with Burke in committing the forgery. The trial court granted the motion, Quick and ZR Consulting, Inc. appeal, and we affirm.

Facts and Procedural History

[¶ 2.] The prior suit arose out of a consulting contract between ZR Consulting, Inc. and Freshway, Inc. Quick, as the president and sole shareholder of ZR Consulting, Inc., retained Burke to sue Fresh-way for breach of contract. Burke prepared a complaint' naming Quick, instead of ZR Consulting, Inc., as the plaintiff. In preparing for trial, it was. determined that ZR Consulting, Inc. was the real party in interest. To rectify that problem, Burke prepared a corporate document entitled an “Action in Writing.” By that writing, ZR Consulting, Inc. assigned its rights under the consulting contract to Quick. Burke apparently believed that to appear effective, the document had to be backdated to 1994 and that Quick’s ex-wife was a necessary signatory. Therefore, Burke asked Quick to sign his ex-wife’s name on the document. Because Quick indicated that he could not “convincingly” sign her name, Burke signed her name in Quick’s presence. Although both signatures were affixed on March 12, 2001, the document was also backdated to October 1994.

[¶ 3.] Due to a conflict in Burke’s schedule, attorney Bob Burns was retained to try the breach of contract case. The trial began on March 15, 2001. Burns, unaware that the Action in Writing had been backdated and forged three days earlier, introduced the document into evidence. Although Quick was aware of the forgery, he sat by silently and did not inform Burns of these facts when the document was introduced. However, after opposing counsel questioned Quick about the legitimacy of his ex-wife’s signature, Burns became suspicious and he questioned Quick about the matter at the conclusion of the first day of trial. Quick then admitted the forgery. After Burns advised Quick that he was partially responsible for the forged evidence, Quick told Burns to settle the case so that he could avoid having to testify under oath. Burns then settled the case for substantially more than Quick had authorized, but for less than what Quick had sought.

[¶ 4.] Quick subsequently brought this malpractice action to recover that difference from Burke. Quick pleaded two causes of action. He first alleged that Burke was negligent in naming Quick, instead of ZR Consulting, Inc., as the plaintiff and real party in interest. Quick also alleged fraud in Burke’s preparation of the Action in Writing.

[¶ 5.] Burke’s Personal Representative subsequently moved for summary judgment alleging that Quick was in pari delic-to with Burke in the preparation and use of the forged document. The trial court agreed and dismissed the action. Although both Quick and ZR Consulting filed a joint notice of appeal, only Quick has advanced arguments that the trial court should be reversed.

Decision

[¶ 6.] Quick contends there are two reasons why the summary judgment should be reversed. Quick first contends that the trial court erred in concluding that he was in pari delicto with Burke. Alternatively, Quick maintains that, even if he were in pari delicto with Burke on the fraud, Quick’s “cause of action for negligence [in the preparation of the complaint with the wrong real party in interest] was separable from the fraud and should have survived the motion for summary judgment.”

[¶ 7.] Our standard of review on summary judgment is well-settled. In reviewing a grant of summary judgment, we must decide “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.” Thornton v. City of Rapid City, 2005 SD 15, ¶ 4, 692 N.W.2d 525, 528.

Was Quick ‘In Pari Delicto’ With Burke

[¶ 8.] The doctrine of in pari delic-to is defined as “[t]he principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing.” Black’s Law Dictionary (8th ed 2004). “The doctrine ... is an application of the principle of public policy that ‘[n]o court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.’ ” Evans v. Cameron, 121 Wis.2d 421, 360 N.W.2d 25, 28 (1985) (citing Clemens v. Clemens, 28 Wis. 637, 654 (1871)).

[¶ 9.] Quick relies upon two exceptions to the doctrine. These exceptions are applicable: (1) when the parties are on unequal footing, the client relies on the advice of their attorney, and therefore, there is inequality or undue influence between the lawyer and client, Cameron, 360 N.W.2d at 28-29; and, (2) when denying relief would offend public morals to a greater extent than granting relief. Gaines v. Wolcott, 119 Ga.App. 313, 167 S.E.2d 366, 370 (1969). These exceptions were more fully explained by a Michigan Court of Appeals:

.. .two exceptions to the bar of in pari delicto [are] both drawn from Justice Story:
And indeed in cases where both parties are in delicto concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offense. And besides, there may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be.

Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 447 N.W.2d 864, 867-868 (1989) (citing 1 Story, Equity Jurisprudence (14th ed), § 423, pp 399-400).

[¶ 10.] Considering the public policy exception first, Quick argues that Burke’s use of the in pari delicto defense is a greater violation of public policy than any wrong committed by Quick. He contends that Burke should not be allowed to assert the defense because his conduct was more egregious. However, as is further explained below, this is not a case in which a client innocently relied on an attorney’s advice. This is a case where Quick’s conduct was obviously wrongful and fraudulent, even to a layperson. Therefore, Burke’s forgery does not offend public morals to a materially greater extent than Quick’s forgery.

[¶ 11.] Moreover, we have applied the doctrine even when lesser degrees of fault are involved in the use of fraudulent documents.

The doctrine of pari delicto does not require equal degrees of negligence to preclude indemnity.... If a person seeking indemnity personally participates in an affirmative act of negligence, or is physically connected with an act of omission by knowledge or acquiescence in it on his part, or fails to perform some duty in connection with the omission which he has undertaken, he is deprived of the right of indemnity.

Massey Ferguson Credit Corp. v. Bice, 450 N.W.2d 435, 440 (S.D.1990) (emphasis added) (applying the doctrine of in pari delic-to from indemnity among joint tortfeasors to indemnity among joint fraud feasors) (citing Degen v. Dayman, 86 S.D. 598, 604, 200 N.W.2d 134, 137 (1972)). Therefore, even if Burke were slightly more culpable, where the wrongful conduct was obvious to all, the parties’ relative degree of fault is not a public policy justification requiring indemnity.

[¶ 12.] Quick also asserts that denying him relief would offend public policy because “an attorney who anticipates a possible malpractice action will be in a position where he can create his own built-in defense” by involving his client in the fraud. However, this “built-in defense” theory could only have merit if an attorney were able to convince an innocent client to partake in activity that is not knowingly and openly fraudulent. In such a case, presumably involving a more legally complex or obscure fraud, a more compelling argument could be made to relieve a client of unintentional, but wrongful, conduct. Here, however, Quick was fully aware of the forgery by which he was assisting his cause. Under such circumstances, relief is precluded. As the Wisconsin Supreme Court explained in a similar case involving perjury:

There may be circumstances in which the advice given by an attorney is so complex that the client would be unaware of the wrongfulness involved in following that advice. In such circumstances, more weight may be given to the influence an attorney will have over the client and the amount of reliance which the client can justifiably place in the attorney. The wrongfulness of lying while under oath, however, is apparent. Absent some allegation of special circumstances constituting an exception to the rule of in pari delicto independent of the attorney-client relationship, the client’s deliberate act of lying under oath places that client in pari delicto with the attorney who advised that client to lie.

Cameron, 360 N.W.2d at 28-29.

[¶ 13.] We see no distinction with forgery. Thus, we find no merit to Quick’s public policy arguments under these facts. When a client, participates in obviously fraudulent conduct, the courts may not permit “a fraudfeasor who invokes the court’s jurisdiction to profit from his own fraud by recovering damages.” Mettes v. Quinn, 89 Ill.App.3d 77, 44 Ill.Dec. 427, 411 N.E.2d 549, 551 (1980) (citations omitted).

[¶ 14.] Quick next contends that he was on “unequal footing” when he engaged in the fraudulent conduct. The “unequal footing” exception, as applied in this case, would require “circumstances of ... undue influence, or great inequality of condition .... ” Cameron, 360 N.W.2d at 28 (citing Feld & Sons v. Pechner, Dorfman, Etc., 312 Pa.Super. 125, 458 A.2d 545 (1983)).

[¶ 15.] Quick claims entitlement to this exception because he “deferred to Burke’s expertise” and was told the Action in Writing was merely a “housekeeping matter.” Although we acknowledge the undue influence and great inequality of condition exception, we believe that it is inapplicable here because backdating a document, counseling in a forgery, and allowing the use of forged evidence in court are so obviously fraudulent that no deferral to Burke’s expertise was necessary. Clearly, Quick’s conduct was not premised upon such legally complex concepts that Quick would have been unaware of the wrongfulness of his conduct. See Pantely, 447 N.W.2d at 868 (stating that a “law degree does not add to one’s awareness that perjury is immoral and illegal, any more than an accounting degree adds to one’s awareness that tax fraud is immoral and illegal”). Therefore, Quick’s obviously wrongful conduct disqualified him from using the unequal footing exception. That result is fully justified by this record reflecting that Quick had actual knowledge of his wrongful conduct; i.e. he specifically deferred to Burke to sign his ex-wife’s name, explaining that he could not replicate the signature “convincingly” enough.

[¶ 16.] In the final analysis, it is not important that Quick’s knowledge of the legal ramifications of the document was less than Burke’s, as it was clear to a layperson that Quick was participating in a forgery. It was also obvious that he was submitting a forgery to a fact finder in a judicial proceeding. See Bice, 450 N.W.2d at 439-440. Therefore, Quick cannot escape his own conduct.

“When parties seek equity in the court, they must do equity, which includes entering the court with clean hands. A [party] who does not come into equity with clean hands is not entitled to any relief herein, but should be left in the position in which the court finds him.” ... The maxim that “he who comes into equity must come with clean hands,” is most often utilized “where granting affirmative equitable relief would run contrary to public policy or lend the court’s aid to fraudulent, illegal or unconscionable conduct.”

Hirmich v. Carpenter, 1997 SD 116, ¶¶ 21-22, 569 N.W.2d 568, 573 (internal citations omitted). Because Quick came to the court with unclean hands, and because his conduct was obviously wrongful and fraudulent, he was in pari delicto with Burke.

Separate Cause of Action for Negligence

[¶ 17.] Quick contends that “[a]n-other exception exists where the ‘in pari delicto’ conduct is separable from the conduct for which it is being asserted as a defense.” Thus, Quick argues that, even assuming he was in pari delicto with Burke on the fraud cause of action, that “wrongful act does not carry over and cause a forfeiture of all other causes of action [i.e. negligence] that Quick and ZR Consulting, Inc. have against Burke.” We disagree because, even if the causes of action were considered separately, Quick’s damages on the negligence claim resulted from his wrongful conduct. Stated another way, because his own conduct was a proximate cause of his damages on both the fraud and negligence causes of action, both claims are barred.

[¶ 18.] As previously noted, the doctrine of in pari delicto provides that one “who has participated in wrongdoing may not recover damages resulting from the wrongdoing.” See supra ¶ 8 (emphasis added). This means that Quick may not recover on either claim if his damages were proximately caused by his own conduct. Proximate cause, or legal cause, is “a cause that produces a result in a natural and probable sequence and without which the result would not have occurred.” Estate of Gaspar v. Vogt, Brown & Merry, 2003 SD 126, ¶ 6, 670 N.W.2d 918, 921. However, it is not necessary that a proximate cause is the only cause of a result, as “[i]t may act in combination with other causes to produce a result.” First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 62, 686 N.W.2d 430, 454 (citations omitted). Therefore, in applying the doctrine of in pari delicto:

... where one is engaged with another in the simultaneous [wrongful conduct] ... he cannot recover damages for injuries inflicted upon him through the negligence of his joint wrongdoer unless the violation ... was not a contributing cause of the injuries....

Gaines, 167 S.E.2d at 368 (emphasis added).

[¶ 19.] Quick cannot make that showing. Quick testified in his deposition that he made the settlement decision after Burns informed' him of the consequences of his involvement in introducing the forged document. Thereafter, Quick indicated that he could not return to court and “testify without ... either: A, telling the judge exactly what happened with this document, or, B, settling the case. And so, I mean, we went after settling the case.” Thus, Quick is seeking damages that were caused by the settlement he- authorized. And, because his own conduct was a contributing cause of that settlement, he may not recover.

[¶ 20.] We conclude by pointing out that Quick had alternatives. Rather than engaging in obviously fraudulent conduct, his remedy was to refuse to participate in a forgery, or at the very least, to have disclosed the forgery to his new attorney so the evidence would not have been introduced at trial. If this non-fraudulent course of conduct ultimately resulted in the dismissal of his case for failure to name the real party in interest, Quick may then have proceeded against Burke for negligence. However, having chosen to participate in an obvious fraud, Quick is without a remedy against his joint fraud-feasor.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, and MILLER, Retired Justice, concur.

[¶ 23.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

      . No one has disputed that forgery occurred. For purposes of summary judgment review, we assume the truth of the facts alleged by Burke’s Personal Representative concerning forgery.

      .At one time Quick's ex-wife was a shareholder in ZR Consulting, Inc.

      . There is no indication of any improper or unethical conduct by Burns in this case. It appears that he was duped by Quick and Burke.

      . Quick alleged negligence because the "statute of limitations ran, preventing ZR Consulting from being named as a party plaintiff."

      . Technically, Quick also pleaded a third cause of action for punitive damages. However, the punitive damages claim rises or falls with the fraud claim.

      . Appellant's initial brief, while making general references to ZR Consulting, Inc., argues exclusively for Quick. Therefore, if ZR Consulting, Inc. had any legal claim separate from Quick, it was not presented in Appellant's opening brief. The first mention of a possible separate claim by ZR Consulting, Inc. was made in the Appellee’s brief. Even then, Appellant's Reply Brief responded with the sole argument that Burke had not established the requirements for piercing the corporate status of ZR Consulting, Inc. However, ZR Consulting's right to pursue a separate corporate claim does not involve the piercing of its corporate veil. The correct issue involves agency; that is, whether ZR Consulting, Inc. is precluded from bringing a separate action because of its agent’s participation in the fraud. Thus, ZR Consulting, Inc. has failed to brief or present a valid argument for a separate corporate claim against Burke that might survive independently of Quick's claim. For these reasons, we decline to formally consider any issue regarding a separate ZR Consulting corporate claim.
      However, we do observe that ZR Consulting, Inc. was wholly owned by Quick, who stated that he was the sole shareholder, president, secretary, and treasurer of the company. There is also no material dispute about Quick’s involvement with the Action in Writing. In such situations, companies are generally bound by the actions of their agents. See Grassmueck v. American Shorthorn Association, 402 F.3d 833, 838 (8thCir.2005) (applying in pari delicto and the sole actor doctrine, an agency principle of law, to conclude that " 'where the principal and agent are one and the same,' the agent's knowledge is imputed to the principal despite the fact that the agent is acting adversely to the principal”); Leafgreen v. American Family Mut. Ins. Co., 393 N.W.2d 275, 277 (S.D.1986) (stating that under agency law, "a principal may be held liable for fraud and deceit committed by an agent within his apparent authority, even though the agent acts solely to benefit himself”); Price v. Ford Motor Credit Co., 530 S.W.2d 249, 254 (Mo.Ct.App.1975) (stating that a "corporate defendant is bound by the knowledge of all of its agents”).