author: HARTEN, Judge

text:
    WEST CIRCLE PROPERTIES LLC, Relator (C9-01-156), Appellant (C5-01-591), v. Daniel HALL, County Recorder, Respondent (C5-01-591), County of Olmsted, Respondent, Cascade Township, Respondent (C9-01-156).
    Nos. C9-01-156, C5-01-591.
    Court of Appeals of Minnesota.
    Oct. 16, 2001.

      Christopher J. Dietzen, James M. Susag, Christopher J. Deike, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, (for relator/appellant).
    Terry L. Adkins, Rochester City Attorney, Rochester, MN; and George C. Hoff, Paula A. Callies, Special Assistant Rochester City Attorneys, Hoff, Barry & Ku-derer, P.A., Eden Prairie, MN, (for respondent City of Rochester).
    Robert W. McIntosh, Senior Assistant Olmsted County Attorney, Rochester, MN; and John M. Baker, Mehmeh-Konar Steenberg, Kevin G. Ross, Greene Espel, P.L.L.P., Minneapolis, MN, (for respondent County of Olmsted).
    Peter B. Tiede, Michelle D. Christensen, Murnane, Conlin, White & Brandt, P.A., St. Paul, MN, (for respondent Cascade Township).
    Considered and decided by LANSING, Presiding Judge, HARTEN, Judge, and HANSON, Judge.
   OPINION

HARTEN, Judge

Relator/appellant West Circle Properties (WCP) brought a mandamus action in district court to compel respondent Olmsted County (Olmsted) and respondent Olmsted County Recorder Daniel Hall to record the plat of WCP’s property. Before the district court had addressed the matter, Olmsted’s board passed a resolution not to record the plat. WCP challenged that resolution by certiorari in this court, naming Olmsted and Cascade Township (Cascade) as respondents. The district court subsequently denied WCP’s request for a writ of mandamus, entered summary judgment sua sponte against WCP, and permitted respondent City of Rochester (Rochester) to intervene. WCP challenged the summary judgment and moved this court to consolidate that appeal with its certiorari appeal from Olmsted’s decision not to record the plat. The motion was granted.

Because the decision not to record a plat is a quasi-judicial administrative decision, we conclude it is appropriate for certiorari review. Because the plat WCP presented for recording was defective as a matter of law in that it had not been presented to Olmsted’s board of commissioners for approval, we conclude that there was no duty to record it and that the district court did not abuse its discretion in denying mandamus. Finally, because WCP agreed that whether Olmsted had a duty to record was the single legal issue dispositive of this matter, we conclude that WCP was not prejudiced by lack of notice when the district court ordered summary judgment on that basis.

FACTS

WCP, a real estate developer, owns and wants to develop a parcel of property adjacent to Rochester in Cascade Township, Olmsted County. In 1999, when WCP began the process, Cascade had no planning or zoning controls. WCP therefore began discussing with Olmsted and Rochester the possibility of annexing the property to Rochester to obtain municipal water and sewer. No agreement was reached.

In May 2000, Cascade adopted a set of interim ordinances, one of which provided that it would adopt and administer the Olmsted zoning ordinances during the next twelve months while Cascade’s planning commission completed a study. Olmsted had zoned WCP’s property “agricultural urban expansion.” WCP applied to Cascade to have the property rezoned as a “special zoning district” and Cascade agreed to rezone it.

Olmsted’s “agricultural urban expansion” designation requires property that generates sewage to connect to an authorized public sewage collection system; Cascade’s “special zoning district designation” permits independent sewage collection systems. Thus, Olmsted’s zoning would require WCP to connect to the Rochester system, while Cascade’s zoning would permit it to install an independent system. Because WCP’s proposed development did not involve connection to Rochester’s public sewage collection system, the development complied with Cascade’s zoning designation, but not with Olmsted’s.

Cascade approved both the preliminary and the final plat, subject to WCP’s obtaining a well water permit from Olmsted’s environmental commission. Although the commission staff recommended approval of WCP’s application for the permit, a resolution recommending denial was circulated before the commission’s meeting, and WCP withdrew its application.

Cascade later passed a resolution by which it took over adoption and enforcement of official controls and amended its ordinance to provide for approval of well water permit applications by the State Department of Health or a Cascade-approved inspector licensed by the state. Cascade also reaffirmed its decision to rezone WCP’s property and to approve the final plat, and eliminated the requirement for a well water permit. But when WCP attempted to record the plat, Olmsted’s clerk refused. Ultimately, WCP was told that the plat could not be recorded unless the Olmsted Board of Commissioners approved it.

Olmsted’s decision reads:

WHEREAS [WCP] has tendered for recording in the Office of Property, Records and Licensing a plat for a subdivision * * ⅜ and
WHEREAS the said plat was tendered without evidence of the approval of [Olmsted] * * *
NOW, THEREFORE, BE IT RESOLVED, that [Olmsted] does direct that the Manager of Property, Records and Licensing not record the said plat of [WCP] for failure of the developer to abide the requirements of the Delegation Agreement for Water Wells from the State Department of Health, Chapters 1031, 394, 145A and 505 of Minnesota Statutes, the County Water Well and Water Supply Ordinance, the County Environmental Services Administrative Ordinance, the County Zoning and Subdivision Ordinances, the County ISTS Ordinance, and County Public Health Regulations # 1 and # 41.

WCP challenged the refusal to record by seeking both a writ of mandamus in the district court and certiorari review of Olmsted’s decision in this court, leading to this consolidated appeal.

ISSUES

1. Is Olmsted’s decision not to record within this court’s scope of review?

2. Was Olmsted’s refusal to record the plat based on legally sufficient reasons?

3. Was WCP prejudiced by the district court’s sua sponte summary judgment?

ANALYSIS

1. Scope of Review

The threshold issue is whether Olmsted’s directive not to record WCP’s plat was a quasi-judicial administrative decision reviewable by certiorari. This court has held that “[t]he denial or approval of a preliminary plat application is a quasi-judicial administrative decision * * Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn.App.1999). While that holding is not precisely on point (action on preliminary plat application rather than plat recording), the distinction is not significant.

Moreover, quasi-judicial acts affect the rights of specific individuals, analogous to the way those individuals would be affected by court proceedings, while legislative acts affect the rights of the public generally. Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn.2000). Olmsted’s decision affects the rights of specific individuals rather than the general public; it is therefore quasi-judicial.

Quasi-judicial decisions are also characterized by:

(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.

Minn. Ctr. for Env’t Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn.1999) (granting or denying conditional use permits is a quasi-judicial decision). Olmsted’s decision meets these criteria. It refers to a lack of evidence for county approval of the plat; it states that WCP failed to meet a number of prescribed standards, and it is a binding decision resolving WCP’s claim that it is entitled to have its plat recorded. The decision not to record was a quasi-judicial administrative decision, and is therefore appropriate for certiorari review.

2. Refusal to Record

The goal of our certiorari review is to determine whether Olmsted’s decision not to record the plat was reasonable. Good Value Homes, Inc. v. City of Eagan, 410 N.W.2d 345, 848 (Minn.App.1987). This court examines the decision to see if the reasons given for it are legally sufficient. Id. Whether Olmsted had legally sufficient reasons for its action depends on the construction of Minn.Stat. §§ 505.03, 462.358, and 394.33 (2000). Statutory construction is a question of law that this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Olmsted directed that the plat not be recorded because it “was tendered without evidence of the approval of the Olmsted County Board of Commissioners.” It refused to record the plat pursuant to Minn. Stat. § 505.03, subd. 1 (2000), which provides that:

The plat shall ⅜ * * together with an abstract and certificate of title, be presented for approval to the council of the city or town board of towns wherein there reside over 5,000 people in which the land is located; and, if the land is located outside the limits of any city, or such town, then to the board of county commissioners of the county in which the land is located.

Cascade has a population of 3,277. Therefore, because WCP’s land is located outside the limits of a town of over 5,000 people and in Olmsted County, WCP is required by statute to present its plan to Olmsted’s board of commissioners.

WCP and Cascade argue that the phrase “wherein there reside over 5,000 people” enacted in 1953, was repealed in 1980 by Minn.Stat. § 462.358, subd. la, providing that:

[A] municipality [defined by Minn.Stat. § 462.352, subd. 2, as “any city ⅜ * ⅜ and any town”] may by ordinance adopt subdivision regulations establishing standards, requirements, and procedures for the review and approval or disapproval of subdivisions.

But the legislature has given no indication that Minn.Stat. § 505.03, subd. 1, is repealed; on the contrary, it revised the subdivision in 1992. Therefore, there has been no explicit or implied repeal because “courts will not imply a repeal of a statute by a later enactment absent strong evidence that the two provisions are irreconcilable.” State v. Shifflet, 556 N.W.2d 224, 227 (Minn.App.1996) (citing Caldwell v. City of Minneapolis, 486 N.W.2d 151, 156 (Minn.App.1992), review denied (Minn. Aug. 4,1992)).

We see no evidence that a statute requiring plats of land not located in a city or town of over 5,000 to be approved by the county board before they are recorded is irreconcilable with a statute permitting any city or town to pass ordinances regulating subdivisions. And if we did see evidence that the statutes were irreconcilable, Minn.Stat. § 505.03, subd. 1, would prevail because it governs the recording of plats and is therefore specific to the problem before us. “[I]f two statutory provisions conflict, then the more specific controls the more general.” Hyland Hill North Condo. Ass’n, Inc. v. Hyland Hill Co., 549 N.W.2d 617, 622 (Minn.1996) (citing Minn.Stat. § 645.26, subd. 1 (1994)).

Moreover, the legislature has addressed the problem of concurrent county and municipality jurisdiction over zoning by limiting the authority Minn.Stat. § 462.358, subd. la, confers on municipalities.

[A]fter the adoption of official controls for a county or portion thereof by the board of county commissioners no town shall enact or enforce official controls inconsistent with or less restrictive than the standards prescribed in the official controls adopted by the board.

Minn.Stat. § 394.33 (2000). Therefore, Cascade’s authority to approve or disapprove WCP’s subdivision plat is limited by its statutory obligation not to enact or enforce controls inconsistent with or less restrictive than Olmsted’s.

Both the Minnesota Supreme Court and this court have addressed the concurrent jurisdiction issue. See Berggren v. Town of Duluth, 304 N.W.2d 24, 27 (Minn.1981); Altenburg v. Pleasant Mound Township, 615 N.W.2d 874, 879 (Minn.App.2000), review denied (Minn. Nov. 21, 2000). Berg-gren concerned a conflict between zoning provisions of a town and those of a county.

Section 394.33 indicates the legislative intent to make zoning regulations of towns subject to county regulations in the interests of achieving uniformity within county boundaries. Any town regulations which may be promulgated are effective upon adoption of county controls only insofar as they are not inconsistent with the county regulations. In order to effectuate the intention of the legislature, standards must be consistently applied to the same sites and not used merely as definitions for particular categories. It would defeat the statutory policy that grants the county priority in zoning if a less restrictive town ordinance were allowed to supersede a county ordinance zoning the same area.

Berggren, 304 N.W.2d at 27 (citations omitted).

Altenburg upheld a township feedlot ordinance that was found to be not inconsistent with and more restrictive than the county ordinance.

[W]e construe the term ‘inconsistent’ [in this context] to mean circumstances where a township implements standards that are different in nature from county standards. For example, a township could not zone an area as a commercial district when the same area has been zoned as a residential district by the county. See Berggren v. Town of Duluth, 304 N.W.2d 24, 26-27 (Minn.1981) (indicating a town’s ordinance zoning three areas as light industrial was inconsistent with a county ordinance that zoned the areas as an environmental district, an agricultural district, and a residential district).

Altenburg, 615 N.W.2d at 879-80. Even though Cascade adopted Olmsted’s ordinances, its application of the standards differed: Olmsted had zoned WCP’s property for “agricultural urban expansion” and Cascade zoned it “special zoning district,” which would permit commercial and light industrial use not permitted by Olmsted’s zoning. Therefore, Cascade’s standards were inconsistent with Olmsted’s, and Olmsted had legally sufficient reasons for refusing to record WCP’s plat.

WCP and Cascade argue that the interpretation advanced in Berggren and Altenburg leads to “complete stagnancy in zoning” and violates the presumption that the legislature did not intend an absurd result. See Minn.Stat. § 645.17(1). But this argument overlooks two points. First, a township is not prevented from imposing lawful zoning regulations that are as restrictive or more restrictive than those of the county, or from amending zoning restrictions within those parameters. Second, affected property owners may apply to the county for rezoning. See Minn.Stat. § 394.25, subd. 10 (“An amendment to official controls may be initiated by the board, the planning commission, or by petition of affected property owners * * *.”).

In any situation involving concurrent jurisdiction, it is essential that priority be established by some means. Here, the legislature used a chronological approach: if a county has already imposed certain land use restrictions, a township may not override those restrictions. Construing these statutes to enable individual townships to override restrictions previously imposed by the county would, in effect, deprive the county of its power to zone and would produce an absurd result. We conclude that Olmsted had no duty to record the plat as presented.

3. Summary Judgment

The district court may grant summary judgment sua sponte if, under the same circumstances, it would grant summary judgment on a party’s motion. Septran v. Ind. Sch. Dist. No. 271, 555 N.W.2d 915, 920 (Minn.App.1996) (citation omitted). WCP recognizes that the district court had the authority to grant summary judgment, but contends that it was prejudiced by lack of notice because it had no opportunity to oppose the judgment.

In January 2001, the district court issued an order denying WCP’s petitions for a peremptory writ and an alternative writ and its request for a declaratory judgment that Olmsted had acted unlawfully. On March 6, 2001, the court sua sponte issued an order for judgment denying WCP’s petitions and request. During that month, WCP raised no challenge to the order.

Moreover, at the hearing, WCP stated that the matter turned on a single legal issue. WCP does not specify now what else it would have argued on this issue, nor did WCP indicate at the hearing that it saw any other issues, lacked notice of the issue being raised, needed more time to develop arguments, or wished to submit a supplemental brief on the issue.

Finally, WCP claims lack of notice because Olmsted filed the brief opposing WCP’s motion for a writ of mandamus just two days before the hearing. But WCP replied to that motion with a brief served the night before the hearing and filed the same day as the hearing. We conclude that there was no prejudice to WCP and no basis to overturn the summary judgment.

DECISION

Certiorari review of the county’s refusal to record the plat was appropriate, because the refusal was a quasi-judicial decision. The county’s refusal was based on legally sufficient reasons, and the developer was not prejudiced by the sua sponte grant of summary judgment.

Affirmed.

      . Although Cascade is denominated a respondent, its interests here more closely ally with those of WCP than with those of Olmsted and Rochester.

      . Counsel for WCP stated: "[T]here is in this case a .pure legal question that I think the Court has to resolve”; "The issue here is whether this plat meets the requirements of the statute and therefore should be recorded”; "[T]he county’s not required to approve the plat”; "[T]his issue is dispositive of the case and it is a pure legal issue. The issue is whether the county is required to approve the plat, and we say no.”

      . In light of our affirming the summary judgment dismissing WCP’s claims, the issue of whether the district court abused its discretion in allowing Rochester to intervene becomes moot. We note, however, that Rochester claims it will be damaged if the plat is recorded because WCP will provide independent utilities to property that lies between an area already served by Rochester's municipal utilities and another area that has petitioned Rochester for the extension of municipal utilities. Minn. R. Civ. P. 24.02 provides that anyone whose claim or defense has a common question of law or fact with the main action may intervene. We see no abuse of discretion in Rochester's intervention.


source: Caselaw Access Project

author: GORDON W. SHUMAKER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Tze THAO, Appellant.
    No. C1-00-2022.
    Court of Appeals of Minnesota.
    Oct. 16, 2001.

      Mike Hatch, Attorney General and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, St. Paul, for respondent.

      John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge, SHUMAKER, Judge, and LINDBERG, Judge.

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

   OPINION

GORDON W. SHUMAKER, Judge.

A jury found appellant Tze Thao guilty of two counts of second-degree murder relating to a drive-by shooting for the benefit of a gang. The district court imposed a sentence that was an upward durational departure from the sentencing guidelines.

Arguing that the evidence was insufficient to support the verdict because of inconsistencies in the testimony; that the court had no proper basis for departing from the sentencing guidelines; and that the prosecutor misstated the law in his final argument, Thao appealed.

Because the evidence was sufficient to support the convictions, there were substantial and compelling circumstances to warrant a durational departure from the sentencing guidelines, and the prosecutor did not misstate the law, we affirm.

FACTS

Zoo Chuyangheu and several friends were playing basketball during the daytime on one of two basketball courts located in Edgerton Park, a public park and playground in Maplewood.

Two vehicles occupied by several young men and women entered the park along a road adjacent to the basketball courts. The occupants of the vehicles had planned to play basketball, but both courts were in use. The lead vehicle, a Jeep, made a U-turn and left the park. The second, a Toyota Corolla, also made a U-turn, but it then stopped near the court on which Chu-yangheu and his friends were playing.

Someone in the car called out to the basketball players, “What you bang?,” an inquiry as to what gang the players were in. The game halted and someone in the car asked if anyone belonged to the “O.L.’s,” an Asian gang known as the Oriental Loks, and then said that he knew the players were O.L.’s. Next, someone in the car pointed a handgun out the window and shot eight times into the group of players. A bullet struck Chuyangheu in the back and he later died from internal bleeding.

On evidence that Tze Thao was the driver of the Toyota and was the shooter, the grand jury indicted him on charges of first-degree murder, second-degree murder while committing a drive-by shooting, and second-degree murder for the benefit of a gang. He pleaded not guilty and the case proceeded to a jury trial.

There were several witnesses to the shooting, both in the Toyota and on the playground. Although some of the testimony was in conflict as to the identity of the shooter, some witnesses on the basketball court and in the Toyota testified that the driver fired the shots and that Thao was the driver. An occupant of the Jeep stated that Thao admitted shooting at the group playing basketball.

St. Paul police officer Richard Straka, a member of the gang strike force, testified that he had known Thao for about four or five years and that Thao regularly associated with a Hmong gang known as the White Tigers. Straka explained that Thao had been photographed with the White Tigers while using “gang signs,” and that a reliable source had also identified Thao as a gang member. Finally, Straka stated that the White Tigers had committed similar drive-by shootings in the past.

During his final argument, the prosecutor, referring to the elements of a “drive-by shooting,” said:

I’m not going to go over all of the elements. A lot of them are very self-explanatory, and as you will see, there are — it came in uncontradicted. For instance, that it was a drive-by shooting. Well, what do you need for a drive-by shooting? All you need is somebody was in a car and shot. The testimony is clear on those matters.

Thao did not object to this argument. At the end of the final arguments, the court instructed on all of the elements of the crimes charged. The jury found Thao not guilty of first-degree murder and guilty of second-degree murder while committing a drive-by shooting and second-degree murder while committing a drive-by shooting for the benefit of a gang.

The presumptive sentence for the latter conviction, the more serious of the two crimes, is 318 months, executed. The court departed durationally from the sentence and imposed a term of 477 months. Challenging the sufficiency of the evidence to sustain his convictions and the court’s departure from the sentencing guidelines, and alleging prosecutorial misconduct, Thao appeals.

ISSUES

1.Several people witnessed a drive-by shooting. Although there were inconsistencies in the testimony as to the precise physical description of the assailant, some witnesses identified the appellant as the shooter. Do the inconsistencies render the guilty verdict unsupported by sufficient evidence?

2. A gang member in a car fired eight shots from a handgun into a group of strangers playing basketball during the daytime on a public playground. The players neither did nor said anything to motivate the shooting; rather the act was premised on the shooter’s speculation that the players belonged to another gang. Do these facts present substantial and compelling circumstances for an upward durational departure from the sentencing guidelines?

3. In his final argument, the prosecutor discussed only two of the several elements of the crime of drive-by shooting, saying that the other elements were self-explanatory. Did the prosecutor commit prosecu-torial misconduct by misstating the law?

ANALYSIS

1. Sufficiency of the evidence

Thao argues that inconsistencies regarding the identity of the shooter give rise to “grave concerns” as to his guilt, and those concerns render the evidence insufficient to convict him. In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988). Inconsistencies in the state’s case do not require reversal if the testimony taken as a whole is consistent and credible. State v. Folkers, 562 N.W.2d 5, 9 (Minn.App.1997). A conviction can rest on the testimony of a single witness, and it is the jury that determines the weight and credibility to be assigned to the testimony of individual witnesses. State v. Miles, 585 N.W.2d 368, 373 (Minn.1998).

Our independent review of the trial transcript convinces us that, although there were testimonial conflicts regarding details of the shooting and the precise identity of the shooter, there was consistent testimony that the driver of the Toyota asked the players on the basketball court if anyone was involved with a rival gang, and then the driver pulled out a gun and started shooting at those players. Additional consistent testimony identified Thao as the driver, even if some of the witnesses were incorrect as to Thao’s physical description.

Thao argues that the gang members agreed to blame him for the crime after the police made it clear to them that they already believed Thao committed the crime and that they would not get into trouble if they supported that belief. The credibility of the evidence is to be determined by the trier of fact. See DeMars v. State, 352 N.W.2d 13, 16 (Minn.1984) (stating “[t]he credibility of the witnesses and the weight to be given their testimony are determinations to be made by the factfin-der”). Here, despite some minor inconsistencies, there is clear, consistent, and credible evidence sufficient to support Thao’s convictions.

2. Upward departure in sentencing

Thao argues that the district court erred in giving him a 50% upward durational departure from the presumptive sentence because there were no aggravating circumstances in this case warranting such a departure. The Minnesota Sentencing Guidelines state that “[the district court] judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involved substantial and compelling circumstances.” Minn. Sent. Guidelines II.D. In the presence of aggravating or mitigating circumstances, the district court has broad discretion to depart from the presumptive sentence under the guidelines, and will not be overturned absent clear abuse of that discretion. State v. Behl, 573 N.W.2d 711, 714 (Minn.App.1998), review denied (Minn. Mar. 19, 1998).

If the record supports the district court’s findings that substantial and compelling circumstances exist, we will not modify the departure unless we have a “strong feeling” that the sentence is disproportional to the offense. State v. Esler, 553 N.W.2d 61, 63 (Minn.App.1996), review denied (Minn. Oct. 15, 1996). In deciding whether to depart durationally, the sentencing court must decide whether the defendant’s conduct is more or less serious than that typically involved in the commission of the crime in question. Id. at 64.

Before challenging the departure, Thao argues that the presumptive sentence was incorrectly calculated. He contends that the sentence for second-degree drive-by murder is 306 months and that the court improperly stated the presumptive sentence as 318 months.

Although Thao is correct as to the sentence for the principal substantive crime, he fails to acknowledge that the conviction was for second-degree drive-by murder for the benefit of a gang. Where the sentence is for the benefit of a gang, the sentencing guidelines require the addition of time as may be appropriate, depending on the offender’s criminal history score. Minn. Sent. Guidelines II.G. Thao’s history score is zero. The guidelines require 12 months to be added to the presumptive 306 months. Id. The district court correctly-recited the presumptive sentence as 318 months.

The district court’s upward durational departure for a drive-by murder committed for the benefit of a gang presents an issue of first impression in Minnesota.

The presumptive sentences in the Minnesota Sentencing Guidelines are presumed to be appropriate unless the court gives reasons that

specify the substantial and compelling nature of the circumstances * ⅜ * which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.

Minn. Sent. Guidelines II.D.

To support its departure, the court explained the substantial and compelling circumstances that made the crime more serious than the typical drive-by shooting and that made a longer period of incarceration more appropriate than that prescribed by the guidelines. The shooting occurred at a public playground next to a school. The court noted that a playground is a place in which people are likely to feel safe, a fact that makes people using the playground particularly vulnerable. There were ten people on the basketball courts and there were other people in other playground areas. All were strangers to Thao. Thao fired eight shots randomly into the basketball court, aiming at no particular person. These facts show substantial and compelling circumstances that make a departure more appropriate than the presumptive sentence.

The uniqueness of the location of a crime has been recognized as a proper factor on which to rely in a sentencing departure. See State v. Murphy, 545 N.W.2d 909, 917 (Minn.1996) (upward departure supported in part by the fact that the crime was committed in victims’ homes, resulting in “an invasion of privacy and security”); Behl, 573 N.W.2d at 714 (stating that crimes that occur in the victim’s zone of privacy, such as the victim’s bedroom, is an approved factor to consider in a departure). Although we do not equate a public playground with a crime victim’s home, we agree with the district court that a playground is generally thought of as a place of recreation and relaxation, a place where people need not take any special protective or precautionary measures. Furthermore, a playground is ordinarily an open area, widely visible to users and passersby, a fact that might lead users to feel that criminals, who almost invariably desire to escape undetected, are not likely to commit crimes there. That geography can trigger particular emotional and mental states in people is common knowledge. Just as the dark alley might conjure fear and apprehension, a playground occupied by several people during daylight has an inviting quality and seems to offer a reasonably safe place to enjoy leisure time. Although it is not a zone of privacy, it is uniquely held out to the public as a zone of tranquility. The fact that crimes are sometimes committed on playgrounds and that there is no guarantee of safety and tranquility does not alter our view. Crimes are also committed in locked homes. Crimes can be committed anywhere. What is controlling is the victim’s reasonable expectation that this is a place where the likelihood of crime is diminished and where safety is the norm.

The district court also noted that Thao fired eight shots in the direction of the people on the basketball court. The randomness of the shooting, the number of shots fired, and the tenuous motivation for the crime make this drive-by shooting atypical. From general knowledge of gang-related drive-by shootings, we are reasonably led to view these crimes as typically involving acts of revenge for some betrayal or disrespect of the gang and that are directed at a particular person.

Here, Thao impulsively speculated that the basketball players, or some of them, were members of another gang. The players neither did nor said anything to warrant that conclusion, nor were they dressed in gang attire. There was no evidence that Thao was in a dispute with the gang he assumed the players to be part of. For no reason other than his surmise, and without any suggestion that all of the players might have been gang members, Thao just shot indiscriminately into the crowd. This put not only Chuyan-gheu but all the other players in jeopardy. See State v. Anderson, 463 N.W.2d 551, 553 (Minn.App.1990) (putting a large number of people in jeopardy is a factor supporting a sentencing departure), review denied (Minn. Jan. 14, 1991).

Considering all the circumstances of this case, we conclude that the district court properly departed from the presumptive sentence.

3. Misstatements of law during closing arguments

In his pro se brief, Thao argues that the prosecutor committed misconduct during closing arguments by misstating the statutory elements of drive-by shooting crime, thus denying his right to a fair trial. Prosecutorial misstatements of the law may be the basis for a defense objection. State v. Jolley, 508 N.W.2d 770, 773 (Minn.1993). However, the proper remedy for misstatements of the law is a curative instruction, and not necessarily a new trial. Id. (finding that whenever a prosecutor makes a misstatement of the law, the defense is free to object and ask for a curative instruction; a new trial may be warranted if there is a showing of prejudicial error due to the misstatement of law and failure to provide a curative instruction).

The record reveals that the prosecutor stated that he would not cover all the elements in his argument because some of them were “self-explanatory.” He then discussed only two of the elements of the charged crimes. He did not represent to the jury that these were the only elements that had to be proved. Thus, he did not misstate the law.

After the closing arguments, the district court appropriately instructed the jury on all the elements that had to be proved to return a guilty verdict. There was no prosecutorial misconduct, and the jury received clear, proper instructions on the law.

DECISION

Despite minor inconsistencies in the witnesses’ testimony, the evidence was sufficient to support the jury’s guilty verdict, there were substantial and compelling reasons supporting the district court’s decision to durationally depart from the presumptive sentence, and appellant did not suffer from any prejudicial error because the prosecutor did not misstate the law during closing arguments. Furthermore, if there were any misstatement, the district court properly cured any error through its jury instructions.

Affirmed.


author: GILBERTSON, Justice.

text:
    2001 SD 118
    Jerald KURTH and Connie Kurth, Plaintiffs and Appellees, v. AERIAL BLADES, INC., Defendant and Appellant.
    No. 21801.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Sept. 26, 2001.
    Timothy W. Bjorkman and Mike C. Fink of Bjorkman & Fink, P.C., Bridgewater, SD, Attorneys for plaintiffs and appellees.
    Danny R. Smeins, Webster, SD, Attorney for defendant and appellant.
   GILBERTSON, Justice.

[¶ 1.] By a grant of summary judgment, Aerial Blades was found hable for wrongful injury to trees and ordered to pay treble damages to Kurths pursuant to SDCL 21-3-10. We reverse and remand for trial.

FACTS AND PROCEDURE

[¶ 2.] On the morning of May 13, 1998, Wade Hursey (Hursey), employee of Aerial Blades, Inc. (Aerial Blades), began spraying the chemical Tordon 22K with an aerial spray helicopter to a pasture adjacent to Jerald and Connie Kurth’s (Kurths) property. Prior to beginning the spraying, Hursey called the weather service to inquire about the wind conditions. Athough he cannot remember exactly what he was told, Hursey claimed that the wind must have been below eight miles per hour, as he would not have started spraying if the winds had been stronger.

[¶ 3.] Later that morning, the winds picked up to 19 miles per hour, blowing southeast with gusts up to 28 miles per hour. Hursey knew that it was important to monitor both the speed and direction of the wind because aerial application of Tordon 22K in windy conditions can damage or kill trees. In his helicopter, Hursey had a weather band radio. He also had radio contact with the mix truck driver at all times, which allowed him to check wind conditions. Hursey admitted that he knew the winds were becoming stronger by the movement of the grass. He claimed, however, that he believed the wind was blowing towards the south, rather than southeast. Hursey testified:

The whole problem with this is that I thought it was blowing straight from the south. And obviously, it had to be more of a southeast wind rather than straight south. That’s why I proceeded to spray that pasture, because I thought the wind was coming out of the south and, obviously, it had to have a southeast direction because of the way it went into their yard.

Kurths’ homestead suffered from the drift of the application, which damaged and killed many trees in their yard surrounding their home and on their property.

[¶ 4.] The court entered an Order Granting Partial Summary Judgment on the issue of treble damages pursuant to SDCL 21-3-10, concluding as a matter of law that the statute applied to the facts of the case. Subsequent to this order, the parties entered into a Stipulation and Agreement resolving the remaining issues in the case, which was approved by the trial court. Aerial Blades appeals raising the following issue:

Whether the trial court properly granted Kurths’ motion for partial summary judgment on the issue of treble damages, pursuant to SDCL 21-3-10.

STANDARD OF REVIEW

[¶ 5.] The standard of review for a summary judgment is well established:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper.

Pettry v. Rapid City Area School Dist. 2001 SD 88, ¶ 7, 630 N.W.2d 705, 708 (quoting Milligan v. Waldo, 2001 SD 2, 8, 620 N.W.2d 377, 379).

ANALYSIS AND DECISION

[¶ 6.] Aerial Blades argues that a material issue of fact exists because reasonable minds could differ on whether Hursey’s conduct, falls into an exception of SDCL 21-3-10. This statute provides, “[flor wrongful injury to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such a sum as would compensate for the actual detriment, except where the trespass was casual and involuntary .... ’’(emphasis added). The wrongful conduct protected against in this statute is not the unlawful entry onto one’s land, but rather any injury to the trees. Wallahan v. Black Hills Electric Coop., Inc., 523 N.W.2d 417, 421 (S.D.1994).

[¶ 7.] Aerial Blades argues that Hur-sey’s conduct of spraying under the mistaken direction of the wind falls into this statutory exception as “casual and involuntary.” Thus, Aerial Blades contends, there is a material issue of fact for the jury to decide whether Hursey’s conduct constituted such an exception. The only South Dakota case that has addressed treble damages pursuant to SDCL 21-3-10 is Wallahan. In Wallahan, an electric cooperative, BHEC, negligently entered Walla-han’s land to trim some trees that were near power lines. Id. at 419. Wallahan sued BHEC for trespass and excessive trimming of trees on his property, seeking treble damages pursuant to SDCL 21 — 3— 10. Id. The Wallahan court held the question of treble damages is a jury question, stating “[generally, whether one or more of the exceptions apply is a question for the jury to decide.... ” Id. at 422. That rationale is applicable here.

[¶ 8.] Therefore, whether treble damages is applicable to Aerial Blades presents a genuine issue of material fact. This is a question for the jury to decide, not for the court to decide as a matter of law. The trial court erred in granting partial summary judgment against Aerial Blades. We reverse and remand for trial.

[¶ 9.] SABERS, Acting Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 10.] MILLER, Retired Chief Justice, having been a member of the Court at the time this action was submitted to the Court, did not participate.

       Although Hursey testified he did not know the winds were exactly at 19 miles per hour, he does not dispute this information.


author: SABERS, Acting Chief Justice.

text:
    2001 SD 119
    In the Interest of C.H., Minor Child, and Concerning D.H. and C.H., Respondents.
    No. 21788.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Sept. 26, 2001.

      David A. Von Wald, Hoven, South Dakota, for appellant child, C.H.
    Mark Barnett, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, for appellee State.
   SABERS, Acting Chief Justice.

[¶ 1.] C.H. is a minor who was adjudicated a delinquent child for the offenses of Intentional Damage to Property in the First Degree, Unauthorized Operation of a Vehicle, Minor Consumption of Alcohol, two counts of Rape in the Second Degree, and two counts of Sexual Contact with a person capable of consenting, but who did not consent. C.H. appeals only those adjudications relating to rape and sexual contact with the victim. We affirm the two rape adjudications but reverse the two sexual contact adjudications.

STANDARD OF REVIEW

[¶ 2.] 'Our standard for reviewing the sufficiency of evidence is well established:

In determining the sufficiency of the evidence to constitute the crime, the question is whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.

State v. Larson, 1998 SD 80, ¶ 19, 582 N.W.2d 15, 17. This Court “will not resolve conflicts in the evidence, pass on the credibility of witnesses, or weigh the evidence.” State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905.

[¶ 3.] 1. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT ADJUDICATIONS OF BOTH RAPE AND SEXUAL CONTACT.

[¶4.] C.H. contends that the evidence was insufficient to support a finding of intoxication of the alleged victim preventing consent and adjudications for second-degree rape and sexual contact.

[¶ 5.] In determining the sufficiency of the evidence for the charged crime, the question is “whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” Larson, 1998 SD at ¶ 9, 582 N.W.2d at 17. The crime of rape is defined in SDCL 22-22-1(4). SDCL 22-22-1(4) provides:

Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
(4) If the victim is incapable of giving consent because of any intoxicating, narcotic or anesthetic agent, or hypnosis[.]

[¶ 6.] To uphold the verdict of guilty, the State was required to prove beyond a reasonable doubt that the victim was incapable of giving consent because of any intoxicating, narcotic or anesthetic agent, or hypnosis. SDCL 22-22-1(4). The evidence must be viewed in a light most favorable to the guilty verdict. State v. Knecht, 1997 SD 53, ¶49, 563 N.W.2d 413, 421 (noting sufficiency of the evidence should be viewed in a light most favorable to the verdict). Such a viewing yields the conclusion that there was sufficient evidence to support the determination of guilt.

[¶ 7.] The record contains ample evidence to support the finding of penetration and intoxication preventing consent. Based on the evidence, the trial court determined that the victim was too intoxicated to consent to rape.

[¶ 8.] This same analysis is applicable to the sexual contact adjudications. SDCL 22-22-7.4 provides:

No person 15-years of age or older may knowingly engage in sexual contact with another person other than his spouse who, although capable of consenting has not consented to such contact.

To uphold the adjudications for sexual contact, the State was required to prove beyond a reasonable doubt that the victim was capable of consenting to “sexual contact with another person,” but did not consent to such contact. Viewing the evidence in a light most favorable to the verdict, there was ample evidence to show that the victim did not consent to sexual contact with C.H.

[¶ 9.] 2. WHETHER THE TRIAL COURT ERRED IN ADJUDICATING C.H. A DELINQUENT FOR TWO COUNTS OF RAPE AND TWO COUNTS OF SEXUAL CONTACT FOR THE SAME CONDUCT.

[¶ 10.] The State alleged four separate offenses against C.H. The trial court adjudicated C.H. a delinquent of two counts of second-degree rape and two counts of sexual contact with a person capable of consenting, but who did not consent.

[¶ 11.] In the case of State v. Bram-mer, this Court determined that “the offenses of rape and sexual contact are mutually exclusive” and held that Brammer could not be convicted of both rape and sexual contact. State v. Brammer, 304 N.W.2d 111, 114 (S.D.1981). This Court stated that it was “of the opinion that the evidence supports a conviction on a single act of rape, thereby excluding the conviction on the act of sexual contact.” Id. This Court concluded that:

[t]he legislature intended the sexual contact statute to apply to touching incidental to rape. The obvious intent of the legislature is to deal with those who molest young children for sexual gratification without raping them. Sexual contact is a separate and distinct offense. The legislature imposed a more severe penalty for it than for rape.

Id.

[¶ 12.] The South Dakota legislature did not intend to allow cumulative punishments for a single act of sexual penetration. Accordingly, the two sexual contact adjudications should be vacated and the matter remanded for proceedings consistent with this opinion.

[¶ 13.] KONENKAMP, AMUNDSON and GILBERTSON, Justices, concur.

[¶ 14.] MILLER, Retired Chief Justice, having been a member of the Court at the time this action was submitted to the Court, did not participate.


author: VON WALD, Circuit Judge.

text:
    2001 SD 121
    D. Mark and Glennis ZARECKY, Plaintiffs and Appellants, v. James E. THOMPSON, Defendant and Appellee.
    Nos. 21657, 21660.
    Supreme Court of South Dakota.
    Considered on Briefs May 29, 2001.
    Decided Sept. 26, 2001.

      Gary G. Colbath Jr. and Barton Banks of Banks, Johnson, Colbath & Kerr Rapid City, SD, Attorneys for plaintiffs and appellants.
    Mark W. Haigh of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for defendant and appellee.
   VON WALD, Circuit Judge.

[¶ 1.] D. Mark and Glennis Zarecky (Zarecky) appeal from the judgment issued following a court trial. James E. Thompson (Thompson) filed a notice of review of the trial court’s denial of his motion for summary judgment.

FACTS AND CASE SUMMARY

[¶ 2.] D. Mark and Glennis Zarecky purchased two residential lots from James E. Thompson, a residential land developer in Pierre, South Dakota. The lots are located in what is known as Riverplace First Addition, a residential development that Thompson started in 1990 adjacent to the Missouri River.

[¶ 3.] Prior to the purchase of the lots in 1992, Zarecky requested and obtained from Thompson a copy of a 1990 geotech-nical exploration report prepared by Twin City Testing. The report specified two major concerns with the building sites next to the river. The first concern was the stability of the adjacent slopes and riverbank; the second was the potential for expansion of the soils due to the presence of fat clays. The report did not detail the stability of the slope. However, it detailed an opinion as to how construction could be attempted on the property. Additionally, the opinion specified that the surface water be directed away from slopes, and that the amount of moisture in the fat clays below the structure be maintained at the same levels both during and after construction.

[¶ 4.] Zarecky knew of these problems prior to the purchase of the lots and prior to the construction of the home. Zarecky is a construction contractor and a Pierre native. He has knowledge of the stability concerns of building next to the river at the bottom of a natural runoff area. Because of the number of concerns regarding the soil conditions, Thompson delivered and Zarecky accepted a warranty deed which specified that Zarecky was responsible for the structural stability of the land and any resulting problems associated from the lack thereof.

[¶ 5.] Prior to construction of the home, Zarecky hired a registered engineer to design a foundation that complied with the recommendations of the Twin City Testing Report. The resulting foundation exceeded the minimum recommendations and was constructed to prevent the shifting due to soil expansion and contraction. The design was based solely on the report of Twin City Testing. Zarecky conducted no further soil tests on the building site. No tests were conducted regarding the slope stability. Construction began on the house in 1993 and Zarecky took up residence that fall.

[¶ 6.] In 1995, Thompson constructed a house on the lot immediately adjacent and north of Zarecky. This house was severely damaged by subsurface movement of the soils.. The house was later abandoned and moved off the site. Around the same time as Thompson’s construction, Zarecky experienced problems due to subsurface soil movement and shifting of the foundation of his home. Testimony indicates that problems may have started prior to 1995 and the construction of the Thompson house.

[¶ 7.] In August 1997, Zarecky began this action against Thompson, alleging he negligently altered the flow of water onto the Zarecky property during the construction of his house, and that the damage caused to the Zarecky property was a direct result of Thompson’s negligence. Following a court trial, the court entered final judgment and 130 findings of fact and conclusions of law.

STANDARD OF REVIEW

[¶ 8.] This Court reviews a trial court’s findings of fact under the “clearly erroneous” standard and overturns a trial court’s conclusions of law only when the trial court erred as a matter of law. Dougherty v. Dougherty, 482 N.W.2d 320 (S.D.1992); Jankord v. Jankord, 368 N.W.2d 571 (S.D.1985). In applying the clearly erroneous standard, our function is not to decide factual issues de novo. The question is not whether this Court would have made the same finding that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed. People in Interest of H.M., 474 N.W.2d 267 (S.D.1991); Maryhouse, Inc., v. Hamilton, 473 N.W.2d 472 (S.D.1991). We will not overturn the trial court’s decision unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made. Smith v. Sponheim, 399 N.W.2d 899 (S.D.1987). Due regard shall be given to the opportunity the trial court had to judge the credibility of witnesses. State By and Through DOT v. Garvin, 456 N.W.2d 779 (S.D.1990); Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334, 336 (S.D.1975); Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861, 864 (S.D.1993)

ISSUE ONE

[¶ 9.] Does the record adequately support the trial court’s factual findings?

[¶ 10.] “The findings of fact made by the trial court are presumptively correct. The burden to show error is on the appellant.” Mash v. Cutler, 488 N.W.2d 642, 646 (S.D.1992) (citations omitted). “The credibility of witnesses, the weight to be accorded their testimony, and the weight of the evidence must be determined by the trial court and we accord the trial court some deference based on its observations of the witnesses and the evidence.” Id. (citing Gross v. Gross, 355 N.W.2d 4, 9 (S.D.1984)) (citations omitted). “[D]eter-mining the credibility of the witnesses is the role of the factfinder. Where the trial court has resolved conflicts in evidence, we cannot change its findings.” Mash, 488 N.W.2d at 653-54 (citations omitted). Nothing in the record indicates that the court did not give credence to the evidence presented by both sides. “Further, this court is not free to disturb the lower court’s findings unless it is satisfied that they are contrary to a clear preponderance of the evidence.” Id. (quoting Cunningham v. Yankton Clinic P.A., 262 N.W.2d 508, 512 (S.D.1978) (citing Potter v. Anderson, 85 S.D. 142, 178 N.W.2d 743 (1970)).

[¶ 11.] Each of the thirteen findings of fact claimed as error by Zarecky has a firm basis in the evidence presented. Zarecky may disagree with the factual findings, but they all originate in the evidence. “The test is whether a judicial mind, in view of the law and circumstances, could reasonably have reached the conclusion.” Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” First Nat. Bank of Biwabik, MN. v. Bank of Lemmon, 535 N.W.2d 866, 869 (S.D.1995) (citations omitted).

ISSUE TWO

[¶ 12.] Did the trial court err in relying upon the testimony of Thompson’s expert witness, Vern Bump, in supporting its decision?

[¶ 13.] Zarecky claims that the testimony of Thompson’s expert was not based upon a reliable foundation. Zarecky contends that Bump’s testimony is unreliable because he did not take any independent soil tests on location, did not write a detailed report on the findings of the area, and relied upon other experts research and reports of the situation. Thompson argues that Bump visited the location a number of times and studied the reports issued by other experts. He researched the history of the slope in question and viewed and studied numerous photographs and documents concerning the Zarecky building site. “We have often stated that 'the value of the opinion of an expert witness is no better than the facts upon which it is based.... The credibility of witnesses and the evidentiary value of their testimony falls solely within the province of the [fact finder].”’ Belhassen v. John Morrell & Co., 2000 SD 82, 613 N.W.2d 531, 536 (quoting Bridge v. Karl’s, Inc., 538 N.W.2d 521, 525 (S.D.1995)).

[¶ 14.] Bump’s experience, education, and expertise is in the area of foundations and landslides. Bump is a geotechnical engineer with the South Dakota Department of Transportation. He has been a geological engineer with the DOT since 1961. His curriculum vitae indicates that he has worked extensively with foundations, soils, and landslides since 1961. He has presented a number of professional papers on landslides and soil formations. He has done extensive research on pilings and foundations. A couple of his more pertinent research papers are Use of Stone Columns for Landslide Stabilization and Effects of Groundwater on Structures. There is sufficient evidence to show a reliable foundation for Bump’s testimony. “A trial court has broad discretion concerning the qualifications of an expert and the admissibility of expert testimony, and it will not be reversed on appeal without a clear showing that it abused its discretion.” State v. Corey, 2001 SD 53, 624 N.W.2d 841, 845 (quoting State v. Koepsell, 508 N.W.2d 591, 593 (S.D.1993); State v. Spaans, 455 N.W.2d 596, 598-99 (S.D.1990)).

[¶ 15.] Bump detailed his conclusions during trial and showed precisely how he came to those conclusions. He noted that the landslide affecting the Zarecky property has been active for many years and was first documented in the late 1930s. Entered with his testimony are aerial photos of the land now known as Riverplace First Addition, taken August 16, 1939 and June 19, 1968, as well as current aerial photos. His testimony details the research he went through to make a decision in this case. Bump is eminently qualified to study the location and make an analysis and opinion on .the land and soil conditions of the area. The trial court did not err in relying on Bump’s testimony in supporting the decision. “Due regard shall be given to the opportunity the trial court had to judge the credibility of witnesses.” Century 21 Associated Realty v. Hoffman, 503 N.W.2d at 864 (citing State By and Through DOT v. Garvin, 456 N.W.2d 779; Masek, 89 S.D. 62, 228 N.W.2d at 336).

ISSUE THREE

[¶ 16.] Did the trial court err in finding that Zarecky failed to meet the burden of proof based upon the totality of evidence presented at trial?

[¶ 17.] “Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury.” Peterson v. Spink Elec. Co-op., 578 N.W.2d 589, 591 (S.D.1998) (citations omitted). To recover under a negligence cause of action, Zarecky must prove that Thompson was negligent and that his negligence was the proximate cause (or a substantial factor) for the injury or damage to their property. “Appellant has the burden of establishing that there is sufficient evidence for the factfinder ‘to reasonably conclude, without resort to speculation, that the preponderance favors liability.’ ” Jorgenson v. Vener, 2000 SD 87, 616 N.W.2d 366, 369 (quoting Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981) (quoting Mulder v. Tague, 85 S.D. 544, 549, 186 N.W.2d 884, 887 (1971) (citations omitted)). “In [Leslie at 119], we stated: ‘For proximate cause to exist, “the harm suffered must be found to be a foreseeable consequence of the act complained of.... [T]he negligent act must be a substantial factor in bringing about the harm. ” Williams v. United States, f50 F.Supp. mo, me (D.s.D.ms): Musch v. H-D Co-op., Inc., 487 N.W.2d 623, 625-26 (S.D.1992); accord Hansen v. South Dakota Dept. of Transp., 584 N.W.2d 881 (S.D.1998). Testimony was given to support each side’s position. The trier of fact believed Thompson’s witnesses, and found Zarecky’s evidence was not great enough to meet the burden of proof. Due regard was given to each side of the action by the trial court. “Conflicts in the evidence are resolved in favor of the trier of fact.” Cleveland v. Tinaglia, 582 N.W.2d 720, 727 (S.D.1998) (internal citations omitted). This action of the trial court is not clearly erroneous.

ISSUE FOUR

[¶ 18.] Did the trial court err in awarding Thompson his costs and disbursements from trial?

[¶ 19.] SDCL 15 — 6—54(d) provides “costs and disbursements under this section shall be waived if proper application is not made within 30 days of the entry of judgment. For good cause shown, the court may extend the time.” (emphasis added). Zarecky contends costs and disbursements are waived if not requested within thirty days of the entry of judgment. Clausen v. Aberdeen Grain Inspection, 594 N.W.2d 718, 724 (S.D.1999). In Clausen, costs were requested immediately after summary judgment was entered. The trial judge dismissed a motion for taxation of costs because Wheatgrow-ers failed to cite authority and list how costs were incurred. This Court held that the motion for costs was timely and remanded for a determination of entitlement to such costs.

[¶ 20.] Implicit in SDCL 15-6-54(d) is that for good cause shown the court may extend the time period and allow request for costs after the thirty days. The record indicates that there was a mix-up as to when the parties received the signed judgment from the court. The trial court in this case found there was good cause to allow an extension of time. The standard of review for this issue is an abuse of discretion. “[I]n its discretion, and upon such terms as may be just, [the court may] allow an answer or reply to be made, or other act to be done, after the time limited by this title (Judicial Procedure, Civil), or by an order enlarge such time.” Antonen v. Swanson, 74 S.D. 1, 5, 48 N.W.2d 161, 163 (1951); accord Tingle v. Parkston Grain Co., 442 N.W.2d 252, 253 (S.D.1989). The power conferred by this section is discretionary and the determination of the trial court will not be disturbed except in cases where the court has clearly abused its discretion. In view of how the extension was allowed, no abuse occurred.

ISSUE FIVE

[¶ 21.] Was Thompson entitled to summary judgment based upon the language contained within the warranty deed accepted by Zarecky?

[¶ 22.] Because we affirm the trial court on all the other issues, we need not address the issue of the suitability of summary judgment based upon the warranty deed.

[¶ 23.] The judgment is affirmed.

[¶ 24.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 25.] VON WALD, Circuit Judge, for MILLER, Chief Justice, disqualified.