dissenting.
[¶ 22] I respectfully dissent. This case presents the “perfect storm” of events that I believe called for a hearing in the trial court.
[¶ 23] In Smestad v. Harris (“Smestad I ”), 2011 ND 91, ¶ 15, 796 N.W.2d 662, we held:
We reverse in part and remand this case to the district court for determination whether Smestad has requested equitable relief against Harris that now should be considered by the court.
We obviously believed there was a question of whether or not such relief had been requested or we would have determined that issue for ourselves as a matter of law. The trial court in Smestad I did not decide the issue of unjust enrichment. Rather, on appeal, when faced with the possibility that the statute of frauds might undermine the trial'court’s judgment, Smestad relied on ready-made, or boiler plate language in the complaint (“such other and further relief as the court deems just and equitable”) to argue that she had no adequate remedy at law because the oral loan agreement was unenforceable under the statute of frauds and she was now entitled to equitable relief.
[¶ 24] Not only was there an issue of whether or not Smestad adequately pled her claim for equitable relief, Harris was entitled to argue Smestad had failed to prove the elements of unjust enrichment if her claim was adequately pled. Furthermore, there is, as the majority opinion discusses at ¶ 13, the question of whether or not a person who has performed under a contract that is unenforceable under the statute of frauds may recover restitution. This is an issue of first impression with this Court. Yet, on remand, Smestad was not given the opportunity to argue those issues to the trial court.
[¶ 25] Add to this mix the fact that a new judge was assigned to the case because the original trial court judge had retired. Although the newly assigned judge complied with N.D.R.Civ.P. 63, as directed by our opinion in Smestad I, I do not believe that is adequate under the circumstances in this case. To the extent that our direction may have misled the new trial judge to believe that compliance with Rule 63 was all that was required, we should now correct that impression. Whether or not Harris was entitled to introduce new evidence on remand, he was entitled to argue the questions of fact and law involving the adequate pleading of eq*371uitable relief. More significantly, because the newly assigned judge had not heard the witnesses, Harris should have been given the opportunity to argue whether or not under the facts in the record Smestad proved the elements of unjust enrichment. Finally, Harris should have been heard on the legal question of the right of a party to an unenforceable contract under the statute of frauds to recover restitution. Harris was not given that opportunity and, as a matter of process, I would reverse the judgment and remand to allow him that opportunity.
[¶ 26] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM