634 N.W.2d 311
Nos. 21657, 21660Supreme Court of South Dakota.Considered On Briefs On May 29, 2001.
Opinion Filed September 26, 2001.
Appeal From The Circuit Court Of The Sixth Judicial Circuit Hughes County, South Dakota. Honorable James W. Anderson Judge.
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Gary G. Colbath Jr. and Barton Banks of Banks, Johnson, Colbath Kerr, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
MARK W. HAIGH of Davenport, Evans, Hurwitz Smith, Sioux Falls, South Dakota, 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.
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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’sfactual findings?
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“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 ofThompson’s expert witness, Vern Bump, in supporting its decision?
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. 1983); 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
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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 tomeet the burden of proof based upon the totality of evidence presented attrial?
(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 costsand disbursements from trial?
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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 thelanguage contained within the warranty deed accepted by Zarecky?
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