#24650-a-BARNETT, Circuit Judge 

2008 SD 32

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

LAMORE RESTAURANT GROUP, LLC 

and KENNETH HERSLIP, Plaintiffs and Appellees, 

 v. 

ROBERT AKERS and CYNTHIA AKERS, Defendants and Appellants. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE A. PETER FULLER 

Judge 

* * * * 

JOHN K. NOONEY of 

Nooney Solay & VanNorman, LLP Attorneys for plaintiffs 

Rapid City, South Dakota and appellees. 

COURTNEY R. CLAYBORNE and 

MICHAEL K. SABERS of 

Clayborne, Loos, Strommen & Sabers, LLP Attorneys for defendants 

Rapid City, South Dakota and appellants. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON FEBRUARY 11, 2008 

 OPINION FILED 4/16/08 
#24650 

BARNETT, Circuit Judge 

[¶1.] Robert and Cynthia Akers (Akers) appeal from a judgment holding 

that Akers and LaMore Restaurant Group, LLC and Kenneth Herslip (collectively 

LaMore) had entered into a binding contract for the sale of two Rapid City, South 

Dakota, commercial properties with the price to be set by a first and third 

appraiser, notwithstanding the absence of a specified date for the appraisals. Akers 

also appeal from that part of the judgment setting the specific date to be used by the 

first and third appraisers in establishing the price for the two properties. We 

affirm. 

 FACTS AND PROCEDURAL HISTORY 

[¶2.] Akers are the owners of two commercial restaurant properties in Rapid 

City, South Dakota. Pursuant to a lease, they rented both properties to LaMore, 

who operated them as Denny's Restaurants. The original lease contained an option 

to purchase at paragraph XXVIII and established an appraisal process for fixing the 

price if the option was exercised. Several restrictions on the appraisal process were 

set forth in paragraph XXVIII. If the respective appraisers were less than ten 

percent apart, the average of those two numbers would be the final price. If the 

first two appraisals differed in price by more than ten percent, the two appraisers 

would agree upon a third appraiser, who would then choose either the first or the 

second appraisal as the fair price. The third appraiser's choice would be final as to 

price, subject to a minimum price of $2,500,000. 

[¶3.] On February 23, 2005, LaMore indicated its intent to exercise the 

option to purchase the properties. On that date, Akers signed an Addendum to the 

lease agreement (hereinafter First Addendum), essentially repealing paragraph 
#24650 

-2- 

XXVIII of the original lease and revamping the agreed appraisal process. The First 

Addendum removed the minimum purchase price of $2,500,000, leaving the price 

solely to the appraisal process. The parties were to agree upon a Member of the 

Appraisal Institute (MAI) certified appraiser within fourteen days of the exercise of 

the option. That appraiser would set the price; if either party disagreed with the 

first appraisal, they could then get another appraisal from an MAI certified 

appraiser of their choice. If the two appraisals were within seven percent of each 

other, the First Addendum required the two appraisers to "convene and determine 

the value for the subject property, and to the extent that a compromise is not 

reached between them, the two appraisals shall be averaged" which would then be 

the final price. If the two appraisals differed by more than seven percent, "the 

parties shall agree on a third MAI certified appraiser who shall work with the 

initial MAI certified appraiser to determine the appraised value." (Emphasis 

added). 

[¶4.] Thus, if the first two appraisers differed by more than seven percent, 

the second appraisal was discarded and a third appraiser, chosen by both parties, 

would "work with" the first appraiser to determine the value. 

[¶5.] The parties agreed to hire Joe Ibach to conduct the first appraisal. 

Ibach appraised each property at $900,000, for a total of $1,800,000. Upon 

notification of this appraisal, Akers exercised their right to hire a second MAI 

appraiser, John Haeder. Haeder's appraisal did not use the same appraisal date as 

Ibach. Instead, Haeder's appraisal date was some seven months later, on December 

1, 2007. This lead to a significant difference in Haeder's appraisal: $1,045,000 for 
#24650 

-3- 

the Rushmore Road location, and $1,300,000 for the LaCrosse location. Two 

reasons apparently drove the higher numbers. First, LaMore made substantial 

improvements to one of the properties subsequent to exercising the purchase option 

and after the first appraisal was conducted. Second, Akers received a December 1, 

2007, outside offer on the properties and gave that information to the second 

appraiser (Haeder), who used it to help determine the values he set on that same 

date. 

[¶6.] Since the first appraisal (Ibach) and the second appraisal (Haeder) 

were more than seven percent apart, the First Addendum required the parties to 

agree on a third appraiser. However, they could not agree on the third appraiser 

and the matter went to court to settle. The trial court, after reviewing the First 

Addendum, essentially ordered the parties to do what they had agreed to do; they 

were sent out of court to agree upon a third appraiser. Thereafter, the parties 

stipulated that Ken Simpson, a name offered by Akers, would be the third appraiser 

assigned to work with Ibach, the first appraiser. 

[¶7.] In the interim, negotiations continued between Akers and LaMore and 

eventually in April 2007 a sale was finalized on the Rushmore Road property. This 

was evidenced in a document entitled Second Addendum. The Second Addendum 

set the agreed price at $950,000 for that property which was to be a credit against 

any final price set by the first and third appraisers under the First Addendum. 

This Second Addendum did not vitiate the First Addendum; it merely removed one 

property from the dispute and left the overall appraisal price in the hands of the 

first and third appraisers as contemplated by the First Addendum. 
#24650 

-4- 

[¶8.] During the process of working with Ibach, Simpson raised the question 

of the date he should use in setting a value. This brought the matter back to the 

trial court for clarification. The court took testimony, heard arguments, and 

eventually ordered that the third appraiser utilize a date of September 1, 2005. 

This date was a rough compromise between LaMore's assertion that the third 

appraiser should use the same date (April 27) used by the first appraiser, and 

Akers' contention that a later date should be utilized. Both parties apparently 

balked at this compromise date and the matter again came back to the trial court. 

[¶9.] Akers argued that the First Addendum was merely an agreement to 

agree, and that there had been no meeting of the minds on a material term of the 

contract, i.e., the date the third appraiser should use in fixing the value. In the 

alternative, Akers argued that the court should set the date for the third appraisal 

either as the date Simpson was retained by the parties, which would be much later 

than the April 27 first appraisal, or some other later date (which would reflect the 

improvements and the outside offer). However, Simpson testified that according to 

appraisal protocols, the normal method of conducting a follow-up appraisal is to use 

the same date as the first appraiser. 

[¶10.] Following a final hearing, the court entered findings, conclusions and a 

judgment finding that the First Addendum was enforceable despite the lack of a 

specific date for the third appraiser to utilize. In so doing, it held that a contract 

need not specify an exact price so long as a method for determining the price was 

agreed to in the contract. Although the court expressed concerns about whether it 

could pick a date for the appraiser under South Dakota law and that the use of a 
#24650 

-5- 

 

later date could be inequitable in light of the subsequent improvements made by 

LaMore, the court set the date for the third appraiser at April 27, 2005, the date 

used by the first appraiser.1 

[¶11.] Akers raise two issues on appeal: 

Whether the First Addendum constituted a valid contract 

which could be enforced by the parties. 

Whether the trial court had the authority to determine a 

date of valuation when none was supplied. 

STANDARD OF REVIEW 

[¶12.] "We review the circuit court's findings of fact under the clearly 

erroneous standard." City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 

NW2d 22, 25 (citations omitted). "Conclusions of law are reviewed under a de novo 

standard, giving no deference to the circuit court's conclusions of law." Id. (citations 

omitted). "Existence of a contract is a question of law." In Estate of Neiswender, 

2000 SD 112, ¶ 12, 616 NW2d 83, 86. 

Contract interpretation is a question of law reviewable de 

novo. Because we can review the contract as easily as the 

trial court, there is no presumption in favor of the trial 

court's determination. When the meaning of contractual 

language is plain and unambiguous, construction is not 

necessary. If a contract is found to be ambiguous the 

rules of construction apply. Whether the language of a 

contract is ambiguous is . . . a question of law. 

Vander Heide v. Boke Ranch, Inc., 2007 SD 69, ¶ 17, 736 NW2d 824, 831-32 (citing 

Ziegler Furniture and Funeral Home, Inc. v. Cicmanec, 2006 SD 6, ¶ 14, 709 NW2d 

1. The trial court indicated that the option exercise date of February 23, 2005, 

should be utilized but also found under the testimony that no change in value 

occurred between the option exercise date and the first appraisal date; hence 

the April 27 date. 
#24650 

-6- 

350, 354). "[W]hen contract language is ambiguous, and does not speak to a subject 

it would normally be expected to, the court may go beyond the four corners of the 

contract." Id. ¶ 40 (citation omitted). 

ANALYSIS AND DECISION 

ISSUE ONE 

[¶13.] Whether the First Addendum constituted a valid contract 

which could be enforced by the parties. 

[¶14.] Akers argue that the contract in question is unenforceable because it 

fails to set forth, in writing and with sufficient certainty, all material terms. Akers 

thus contend there was no meeting of the minds to form a valid contract. Akers 

further argue that even assuming a valid contract existed the trial court erred in its 

determination as to the appropriate relief to be granted in order to enforce it. We 

begin with an examination of whether a valid contract was created. 

[¶15.] The essential elements of a contract are set forth in SDCL 53-1-2, and 

three of the elements (parties capable of contracting, a lawful object, and sufficient 

cause or consideration) are not at issue in this appeal. The final element is consent 

to contract, which is "a question of law and is to be judged on the objective facts of 

the particular case." Amdahl v. Lowe, 471 NW2d 770, 774 (SD 1991) (citing Federal 

Land Bank v. Houck, 68 SD 449, 4 NW2d 213 (1942); McPherson v. Fargo, 10 SD 

611, 74 NW 1057 (1898)). Akers argue that the First Addendum was insufficient 

because it did not contain the specific date upon which the third appraiser would 

base his evaluation. 

The statute of frauds requires that contracts for the sale 

of land must not only be in writing and signed by the 

party who is to be charged, but the writing must contain 
#24650 

-7- 

all the material terms and conditions of the oral 

agreement between the parties. To satisfy the statute of 

frauds, a memorandum for the sale of land must describe 

the land, the price, and the contracting parties; it need 

not detail the form or delivery of deed, the time and place 

of payment, or any other matters. The statute of frauds 

requires only that the writing evidence the substance of 

the contract. There is no fatal ambiguity if the contract 

terms are sufficiently certain to make the acts required of 

each party clearly ascertainable. 

Amdahl, 471 NW2d at 774-75 (citations omitted). 

[¶16.] "If an agreement leaves open essential terms and calls for the parties 

to agree to agree and negotiate in the future on essential terms, then a contract is 

not established." Weitzel v. Sioux Valley Heart Partners, 2006 SD 45, ¶ 23, 714 

NW2d 884, 892 (citations omitted). Akers assert that the date for the third 

appraisal is a material term of the contract and since the First Addendum provided 

no such date the contract fails. In support of this assertion, Akers note that the 

third appraiser, Simpson, testified that the date of appraisal was material to him. 

Read in context, however, Simpson was merely stating a non-legal opinion that the 

outcome of his appraisal would be affected by the date he used to set that price. The 

reason it would affect the outcome is that between the dates of LaMore's appraisal 

and Akers' appraisal many improvements were made by lessee LaMore and an 

outside offer was also made on the property. 

[¶17.] The mere fact that the date of the third appraisal could affect the 

purchase price does not make it a material element of the contract. Additionally, 

Akers cite no case authority for the proposition that a contract fails if it leaves the 

date of appraisal to the discretion of the appraiser, or inferentially, to the rules used 

by appraisers in conducting follow-up appraisals. Black's Law Dictionary 998 (8th 
#24650 

-8- 

ed 2004) defines "material" as: "Of such a nature that knowledge of the item would 

affect a person's decision-making process; significant; essential." However, Black's 

Law Dictionary defines "material term" as: "Contractual provisions dealing with 

significant issues such as subject matter, price, payment terms, quantity, quality, 

duration, or the work to be done." Id. at 1510. (emphasis added). Simpson is not 

legally trained, nor was he called to testify as a legal expert. Simpson merely 

testified that the date of appraisal was material to his outcome. He did not testify 

that the date of appraisal was a "material term". 

[¶18.] Purchase price, of course, is a material term to a real estate contract. 

See Amdahl, 471 NW2d at 775 (citing Boekelheide v. Snyder, 71 SD 470, 26 NW2d 

74 (1947); Carpenter v. Murphy, 40 SD 280, 167 NW 175 (1918); Phelan v. Neary,

22 SD 265, 117 NW 142 (1908)). The price term, therefore, must be sufficiently 

definite for this Court to give it an exact meaning. See e.g., Weitzel, 2006 SD 45, 

¶ 23, 714 NW2d at 892 (citations omitted). "However, absolute certainty is not 

required; only reasonable certainty is necessary." Id. We have previously held that 

not all terms, such as price, need be set out in the contract as long as they are in 

fact fixed and determinable or reasonably certain. See generally, Nygaard v. Sioux 

Valley Hosp. & Health Sys., 2007 SD 34, ¶ 15, 731 NW2d 184, 191-92. In fact, 

"words that fix an ascertainable fact or event, by which the term of a contract can be 

determined, make the contract definite and certain in that particular." Id. 

¶ 13 (citing Kuhfeld v. Kuhfeld, 292 NW2d 312, 315 (SD 1980)). 

[¶19.] LaMore asserts that option agreements are sufficiently definite as to 

price to justify their enforcement if a practicable mode is provided by which the 
#24650 

-9- 

price can be determined by the court without any new expression by the parties 

themselves. We agree. 

[¶20.] "An agreement is not unenforceable for lack of definiteness of price or 

amount if the parties specify a practicable method by which the amount can be 

determined by the court without any new expression by the parties themselves." 1 

Corbin on Contracts § 98 (1963). Likewise, option agreements have generally been 

held or recognized to be sufficiently definite as to price to justify their enforcement 

if either a specific price is provided for in the agreement or a practicable mode is 

provided by which the price can be determined by the court without any new 

expression by the parties themselves. J.R. Harvey, Annotation, Requisite 

definiteness of price to be paid in event of exercise of option for purchase of property, 

2 ALR3d 701, 703 (1965). Thus, an option to purchase at a price to be fixed by third 

persons acting as appraisers or arbitrators does not fail for lack of definiteness. 77 

AmJur2d Vendor and Purchaser § 38 (2007). 

[¶21.] In this case, the method of determining price was the appraisal 

process, controlled by the terms of the First Addendum entered into by Akers. 

Other jurisdictions have upheld similar mechanisms for determining purchase 

price. See Kane v. McDermott, 547 NE2d 708, 713 (IllApp 4th 1989) (holding option 

to purchase real estate contained in lease which stated that tenant would purchase 

"at the appraised bid as established by three disinterested persons" by definition 

meant that the price was to be the fair market value of the property as set by three 

disinterested persons); Miller v. McCullough, 224 SE2d 916 (1976) (finding option 

contract which provided that the selling price of the property would be "the 
#24650 

-10- 

appraised value of the property at the time of purchase based on an MAI Appraisal" 

to be sufficiently definite); see generally, J.R. Harvey, Annotation, Requisite 

definiteness of price to be paid in event of exercise of option for purchase of property, 

2 ALR3d 701 (1965).

[¶22.] In Marder's Nurseries, Inc. v. Hopping, 171 AD2d 63, 66 (NYAppDiv 

1991), a contract for the sale of real property was held to be sufficiently definite 

where it called for the purchase price to be the fair market value as set by two 

appraisers, and if they could not agree, they would appoint a third appraiser, and 

the price would be set by the decision of any two appraisers. In so holding, the court 

noted the imperfect nature of the method chosen by the parties. 

The method designed by the parties, moreover, is 

seriously flawed, since there is no guarantee that the first 

two appraisers would agree, or that, in the event of their 

disagreement, they would be able to agree as to the 

identity of the third appraiser. Further, there is no 

guarantee that the third appraiser, if he or she agreed to 

the appointment, would concur with either one of the 

original two. We nonetheless conclude that this provision 

is not so indefinite as to require cancellation of the 

contract. 

Id. at 71. 

[¶23.] The method in the present case is similarly flawed. There is no 

guarantee that the first appraiser and the third appraiser will agree on the fair 

market value or on the date which they ought to appraise the property. However, 

"a contract should not be canceled solely on the ground that the parties, having 

stipulated that the purchase price was to be determined by a group of appraisers, 

failed to foresee all possible obstacles or hindrances which might arise during the 

course of the appraisal procedure." Id. at 71-72. 
#24650 

-11- 

[¶24.] In the instant case, the trial court found that "[b]y executing the First 

Addendum, the parties agreed as to a methodology to determine the values of the 

Denny's locations as determined by an MAI certified appraiser(s)." Furthermore, 

the trial court found that "an agreement to leave the calculation to a third party or 

parties constitutes an acceptable method of evaluation." The price term is 

sufficiently definite because both parties specifically agreed to pay or accept 

whatever price could be agreed upon by the appraisers. 

[¶25.] Also, the First Addendum clearly altered the method by which price 

was to be determined. It altered the way in which the appraisers would work 

together and eliminated the minimum price term of $2.5 million. Furthermore, the 

express terms of the Addendum provided that "each of the parties desires [sic] to 

execute this Addendum, so as to modify certain terms and conditions . . . in the 

Lease" and "the parties hereto, intending to be legally bound by the terms hereof

agree to amend the Lease Agreement as follows." "These words are indicative of a 

completed agreement, and do not establish that there are material details upon 

which the parties have not yet reached agreement." Amdahl, 471 NW2d at 775 

(citing 17A AmJur2d Contracts § 32 (1991). Cf. Wiggins v. Shewmake, 374 NW2d 

111, 115 (SD 1985)). We, therefore, hold that the contract is valid. 

ISSUE TWO 

[¶26.] Whether the trial court had the authority to determine a date 

of valuation when none was supplied. 

[¶27.] The trial court ordered that the valuation date to be used by the third 

appraiser, working with the first appraiser, was April 27, 2005 (the date used by the 

first appraiser). Akers' maintain that the date of appraisal is a material term of the 
#24650 

-12- 

contract and that by supplying the date of appraisal the trial court erred by way of 

reforming the contract. In the alternative, they argue that if the trial court properly

engaged in reformation it abused its discretion by selecting the date the option was 

exercised as the date for valuation. 

[¶28.] However, as previously stated, we believe the date of appraisal is not a 

material term of this contract, the price term is sufficiently definite, and a valid 

contract exists. Therefore, the issue is not whether the trial court erred by 

engaging in reformation but whether the court had authority to consider parol 

evidence on the question of which date the third appraiser should use. 

Introduction of Parol Evidence 

[¶29.] The parties in this case first encountered trouble when they could not 

agree on who would serve as the third appraiser. The trial court ordered the parties 

to live up to the First Addendum and find agreement on naming a third appraiser, 

which they did by selecting Simpson, an appraiser offered by Akers. The parties 

then returned to the court because Simpson was unsure of what date to use for 

valuation. The trial court heard extrinsic evidence in the form of live testimony 

from Simpson, as well as argument from counsel, and ordered Simpson to use the 

same date as the first appraiser, April 27, 2005. 

[¶30.] It is a long standing principle that "[p]arol or extrinsic evidence may 

not be admitted to vary the terms of a written instrument or to add to or detract 

from the writing." Jensen v. Pure Plant Food Int'l. Ltd., 274 NW2d 261, 263-64 (SD 

1979) (citation omitted). However, "when the writing is uncertain or ambiguous . . 

. such evidence is admissible to explain the instrument." Id. (Emphasis added). 
#24650 

-13- 

Furthermore, "[i]n construing a contract where ambiguities exist, established trade 

customs and usages may ordinarily be considered." Mash v. Cutler, 488 NW2d 642, 

647 (SD 1992) (citing 17A AmJur2d Contracts § 355 (1991)). While this Court has 

never decided whether parol evidence is admissible to explain a method for 

determining a price term, we have allowed such evidence regarding other essential 

terms of a contract for the sale of land. In Amdahl, 471 NW2d at 775, we stated 

that "[a] general description of the land which is the subject of the contract is 

sufficient, and parol evidence may be admitted to provide the more particular 

description." Id. (citing Habeck v. Sampson, 88 SD 437, 221 NW2d 483 (1974); 2 

Corbin on Contracts § 499). "This is an established exception to the general rule 

that testimony is inadmissible for the purpose of proving the terms of a contract for 

the sale of an interest in land which the statute of frauds requires to be in writing." 

Id. Finally, Restatement of Contracts (Second) § 362(b) (1981) provides: 

Apparent difficulties of enforcement due to uncertainty 

may disappear in the light of courageous common sense. 

Expressions that at first appear incomplete may not 

appear so after resort to usage. . . 

 

However, before extrinsic evidence can be heard the contract must be deemed 

uncertain or ambiguous. In re J.D.M.C., 2007 SD 97, ¶ 30, 739 NW2d 796, 806. 

Ambiguity in the First Addendum 

[¶31.] The trial court did not make a conclusion of law as to whether 

ambiguity exists in this agreement. However, whether the language of a contract is 

ambiguous is a question of law for the court, which is reviewable de novo. All Star 

Constr.v. Koehn, 2007 SD 111, ¶ 33, 741 NW2d 736, 744 (citation omitted). "[A] 

contract is ambiguous only when it is capable of more than one meaning when 
#24650 

-14- 

viewed objectively by a reasonably intelligent person who has examined the context 

of the entire integrated agreement and who is cognizant of the customs, practices, 

usages and terminology as generally understood in the particular trade or 

business." Ducheneaux v. Miller, 488 NW2d 902, 909 (SD 1992) (citations omitted). 

The First Addendum provides: 

In the event that the second MAI certified appraiser 

determines that an appraised value exceeds the initial 

MAI certified by more than seven percent, the parties 

shall agree on a third MAI appraiser who shall work with 

the initial MAI certified appraiser to determine the 

appraised value. 

(Emphasis added). 

[¶32.] Within the context of the entire agreement, it is clear that both parties 

intended to commit the calculation of price to third parties and agreed to be bound 

by the result. It is also clear that the parties agreed that should the first two 

appraisals differ by more than seven percent, a mutually agreed upon third 

appraiser would work with the first appraiser to make the ultimate determination 

as to the purchase price. As to the material terms of the contract there is no 

ambiguity. However, as to the nonessential terms there exists ambiguity. 

[¶33.] The phrase "the parties shall agree on a third MAI certified appraiser 

who shall work with the initial MAI certified appraiser to determine the value," is 

imprecise as to what date the third appraiser should use to set value. Therefore, 

the trial court properly considered custom and usage testimony from Simpson, who 

has been an appraiser in the Rapid City area for thirty-two years. Simpson testified 

that per industry guidelines when multiple appraisers appraise a piece of property 

they use the same date of valuation: 
#24650 

-15- 

 

Q. (By Mr. Nooney) Typically, in your experience, Mr. 

 Simpson, and consistent with the guidelines that 

 you operate under, be it the American Institute of 

 Appraisers or some other designation, when 

 multiple appraisers appraise a piece of property, do 

 they typically use different dates? 

A. No. Not under this type of circumstance. 

 

Furthermore, Simpson testified that in all of his experiences conducting second 

appraisals he has never used a different date of valuation than the first appraiser. 

As the trial court noted, using different dates for the appraisal would be comparing 

apples to oranges. 

[¶34.] After LaMore exercised the option, but before Haeder conducted the 

second appraisal, LaMore paid for almost $200,000 worth of improvements to the 

properties and Akers received an outside offer on the properties. Both of these 

factors significantly affected the market value as reflected in Haeder's appraisal. In 

fact, it resulted in the two appraisals differing by over $540,000. Indeed, the 

property to be sold was not the same property on December 1, 2005, as it was when 

LaMore exercised the option to purchase.2 The apple became an orange. 

[¶35.] Also, the plain language of the First Addendum expressly states that 

the third appraiser was to "work with the initial . . . appraiser to determine the 

appraised value." (Emphasis added). There is simply no mention of the initial 

appraiser and the third appraiser even considering the second appraisal. In fact, 

under the language of the First Addendum, if the second appraisal differed by more 

2. Since we have determined that the agreement satisfied the statute of frauds 

we need not consider whether the agreement should be specifically enforced 

under SDCL 53-8-2(3) and the Restatement of Contracts (Second) § 129 due 

to LaMore's change in position and reliance upon the agreement. 
#24650 

-16- 

than seven percent from the first, the second appraisal was dropped entirely. 

Thus, Akers' argument that Simpson should have been instructed to use December 

1, 2005, the date of the second appraisal, fails. 

[¶36.] We find there was a sufficient basis for the trial court to interpret the 

contract as requiring the first and third appraisers to use April 27, 2005, effectively 

the date the option was exercised, as their date of valuation. Accordingly, we 

affirm. 

[¶37.] BARNETT, Circuit Judge, for SABERS, Justice, disqualified. 

[¶38.] GILBERTSON, Chief Justice, KONENKAMP, ZINTER and 

MEIERHENRY, Justices, concur.