Jensen v. Weyrens

SABERS, Justice

(concurring in part and dissenting in part).

I respectfully dissent on the survey cost allocation because the trial court failed to give effect to its own key findings of fact. They are:

9. In September of 1983, Plaintiff Jensen purchased the property from Defendant Weyrens on a Contract for Deed. It was recited in the purchase agree*266ment, that if the property description was incorrect, that it would be corrected at Weyrens’ expense; and that Jensen was guaranteed 115 feet of shoreline.
* * * * * *
32. Defendant Weyrens knew that there was a boundary dispute when he sold the property to Jensen; he guaranteed 115 feet of shoreline and if there was a problem, he was to solve the problem at his expense.

(Emphasis added). In other words, it appears that the court found as a fact that, as between Weyrens and Jensen, Weyrens had an obligation1 to pay the cost of resolving the boundary dispute if it was a problem.

Weyrens attacks the validity of the “purchase agreement” which required Weyrens to assume the cost of any necessary boundary correction. Weyrens points out that the purchase agreement offered in evidence bears only Jensen’s signature and that, in any event, its terms are superseded by the contract-for-deed, since “the parties naturally and normally would have included any agreement to [allocate boundary correction costs] in the written contract.” Lanning Constr., Inc. v. Rozell, 320 N.W.2d 522, 524 (S.D.1982); SDCL 53-8-5.

The fact remains that the court, as finder of fact, determined that Weyrens was responsible to pay for resolving the known boundary discrepancy should it become “a problem.” Weyrens’ failure to object to this finding of fact or this determination or to file a Notice of Review upon Jensen’s appeal waived any objection to the finding, and it is now the law of the case. Johnson v. John Deere Co., 306 N.W.2d 231, 239 (S.D.1981); Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976).

In reviewing all the findings and the entire record, as we must, we cannot determine whether the trial court gave any effect to Finding of Fact 9 or 32. “It is not the province of this court to ... amend findings[.]” Nilsson v. Krueger, 69 S.D. 312, 9 N.W.2d 783, 787 (1943). It is for the trial court to make adequate findings to enable us to make a meaningful review. One of the chief purposes of findings of fact is “to aid the appellate court in reviewing the basis for the trial court’s decision[.]” Heikkila v. Carver, 416 N.W.2d 591, 592 (S.D.1987) (citing J. Moore & J. Lucas, 5A Moore’s Federal Practice ¶ 52.-06[1] (1987) and C. Wright & A. Miller, 9 Federal Practice and Procedure § 2571 (1971)). Accordingly, “the appellate court may remand for ... further findings” if necessary to a meaningful review of the decision. Heikkila v. Carver, supra. See also Reese v. Henke, 286 Minn. 145, 174 N.W.2d 690, 693 (1970) (appellate court unable to determine from the record the correct allocation of judgment award remands for additional findings).

Therefore, we should reverse and remand to the trial court for further findings on the nature of the obligation Weyrens owed to Jensen and what effect, if any, that obligation had on the court’s ultimate allocation of the survey cost.2

AMUNDSON, J., joins this special writing.

. Although one might argue that the court’s Finding of Fact 9 is more of a recitation than a finding, the same cannot be claimed as to Finding of Fact 32. In addition, the April 19, 1990 memorandum opinion, which was incorporated by reference in Finding of Fact 38, provides in part that "if there were any problems [Weyrens] was to solve them at his expense.” (Emphasis added).

. This would produce a fairer result than either of the available alternatives: ignore the trial court’s finding, as both the trial court and the majority opinion have done, or give immediate effect to the trial court’s finding and make Wey-rens “solve the problem at his expense” by reimbursing Jensen for his allocated share of the survey cost in the amount of $3,696.20.