R & S Construction Co. v. BDL Enterprises, Inc.

AMUNDSON, Justice

(dissenting).

The trial court, after a lengthy trial, rendered a decision dividing the fault and responsibilities of the parties in a fifty-one page memorandum opinion, which was incorporated into its findings of fact and conclusions of law. The record in this case certainly is indicative of a hotly contested case, with numerous witnesses testifying in regards to the contested claims.

After considering the case, the trial court found the primary responsibility for delay and additional costs was BDL’s indecision on the scope of project and continual revision of the project as it was being designed and built. Further, after this was com*633menced, it was discovered that BDL received additional compensation for some of the changes in the project from its tenant, Nash Finch. This additional compensation was retained by BDL and BDL then contended at trial that it should recover these same additional costs from TSP. The record does not indicate that the trial court offset this additional compensation from the amount of damages awarded to BDL. The accuracy of these findings of the trial court have not been challenged or shown to be erroneous.

There is a presumption that the ruling and decision of the trial court are correct and the appellate court should not seek reasons to reverse. Pearson v. Pearson, 312 N.W.2d 34, 36 (S.D.1981). The appellate court should review all the record in order to determine whether or not it is left with a definite and firm conviction that a mistake has been made. Rosebud Sioux Tribe v. Strain, 432 N.W.2d 259, 265 (S.D.1988). A right result can be reached by a trial court even though there can be inconsistencies in arriving at same. Seymour v. Western Dakota Voc. Tech. Inst., 419 N.W.2d 206, 209 (S.D.1988).

This court can easily find some inconsistencies in a well thought out fifty-one-page decision, but the real issue to be dealt with is whether, when considering the whole record, an error was made. I am not left with a definite and firm conviction that the trial court erred in its ruling on this complicated construction case. It found one party, BDL, was primarily responsible for the construction cost overruns and apportioned responsibility accordingly. Therefore, I would affirm.

I am authorized to state that Chief Justice MILLER joins in this dissent.