#29766-aff in pt & rev in pt-PJD

2022 S.D. 62

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

LISA MURPHEY, Plaintiff and Appellee,

v.

JARED PEARSON, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

MEADE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE KEVIN J. KRULL

Judge

* * * *

KASSIE MCKIE SHIFFERMILLER of

Lynn, Jackson, Shultz & Lebrun, P.C.

Rapid City, South Dakota Attorneys for defendant

and appellant.

ROBERT D. PASQUALUCCI

Rapid City, South Dakota Attorney for plaintiff

and appellee.

* * * *

CONSIDERED ON BRIEFS

APRIL 25, 2022

OPINION FILED 10/19/22
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DEVANEY, Justice

[¶1.] Lisa Murphey and Jared Pearson were in a romantic relationship and 

lived together from 2009 until February 2020. They never married, but they had a 

child together. When their relationship ended, Lisa instituted an action to 

determine custody, child support, and shared parenting. Jared counterclaimed for 

breach of an implied contract and unjust enrichment, asserting that the parties had 

impliedly agreed that the couple would jointly own the home and Jared would 

receive his share of the equity in the home acquired by virtue of his financial 

contributions toward the home mortgage. In her reply, Lisa denied that such an 

agreement existed, claiming instead that she owned the home and that Jared only 

paid her rent while living there. The circuit court, after a bench trial, denied 

Jared’s claims; concluded that Lisa and Jared’s relationship was that of a landlord 

and tenant and awarded Lisa back rent; and determined shared parenting and child 

support issues. Jared appeals, raising multiple issues. We affirm in part, reverse 

in part, and remand.

Factual and Procedural Background

[¶2.] In 1995, Jared and Lisa met while attending high school in Britton, 

South Dakota. They lost touch after graduation but reconnected in 2008 and began 

a long-distance, romantic relationship. At the time, Jared was living in Aberdeen, 

and Lisa was living in Sturgis in a mortgaged home with her two children from a 

previous relationship.

[¶3.] In December 2009, Jared moved to Sturgis to live with Lisa and her 

children. He worked as an optometrist and paid Lisa $500 per month for what he 
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characterized as his contribution to household expenses. Lisa testified that they 

“didn’t really have an arrangement” and that the $500 a month Jared “chose to pay 

. . . included his room, board, his food, toiletries.” She characterized these payments 

as “rent.”

[¶4.] In 2012, while Lisa and Jared were still living together, their son, B.P., 

was born. Lisa testified that their relationship was strained at this time, but she 

attempted to make it work for the sake of their child. The following year, Lisa and 

Jared decided to move away from Sturgis. Jared had plans to open an optometry 

business in Rapid City, and Lisa, who was working as an audiology technician and 

for the South Dakota National Guard, hoped to work in Rapid City at some point.

[¶5.] After looking at homes with Jared and her family members, Lisa 

decided to sell her home in Sturgis and purchase a home in Summerset, South 

Dakota. According to Jared, the couple considered multiple financing options but 

opted for a loan through the Department of Veterans Affairs (VA) because it had the 

most favorable terms. Jared further claimed that the loan could only be obtained in 

Lisa’s name because Jared was not a veteran of the armed forces and was not 

married to Lisa. According to Lisa, she alone decided to obtain the VA loan after 

Jared told her he was not interested in contributing to the purchase of the home 

because he did not want the debt and was trying to open his own optometry 

practice.

[¶6.] In September 2013, Lisa closed on the purchase of the home. Jared did 

not attend the closing and did not contribute to any of the associated costs. Lisa 

used the proceeds from the sale of her home in Sturgis to personally pay $1,000 as 
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earnest money and $1,467 in closing costs. Jared’s name is not on the deed. Lisa 

obtained a homeowner’s insurance policy in her name only, and Jared obtained a 

renter’s insurance policy.

[¶7.] After the two moved into the Summerset home, Lisa began presenting 

Jared with monthly statements of expenses and asked him to pay half of the total 

amount listed. These statements included expenses such as the water bill, garbage 

bill, B.P.’s daycare bill and insurance premium, electric bill, mortgage payment, 

groceries, internet or television provider bill, and other miscellaneous expenses. 

Some of the monthly statements included amounts incurred for purchasing gifts for 

B.P. Lisa explained that she did not include her personal expenses or expenses 

incurred for her other two children.

[¶8.] According to Jared, the couple’s financial arrangement made it “easier 

for one individual to pay [all of the expenses] rather than to have each of [them] 

paying things and then try to keep track of everything and come to some conclusion 

on who owed who[m] what.” In his view, Lisa oversaw the finances and made the 

decisions as to what was included and what was not. Jared claimed that “[f]or the 

most part,” he paid the amount Lisa requested, but he admitted that some months 

he did not pay any amount or only partially paid the amount on the statement. He 

explained that in 2014, he and three other optometrists started an optometry 

practice in Rapid City, which for the first few years, reduced his income stream. He 

asserted that when his income became more stable, he contributed more than what 

Lisa requested during a given month, which he believed made up for months he did 

not fully contribute.
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[¶9.] In August 2016, Lisa refinanced the loan on her home. She claimed 

that she had to do so to stay current on the bills because Jared had not been 

contributing his share of the household expenses. Jared, in contrast, claimed that 

the couple jointly made the decision to refinance. It is undisputed that Jared did 

not attend the closing or contribute to the $500 closing cost when Lisa refinanced.

[¶10.] While they lived in the Summerset home, both parties contributed 

funds and labor for improvements. Jared claimed that he installed a camper pad

and sandbox, did landscaping, stained the fence and deck, and built raised garden 

beds and garage cabinets. He asserted that he personally paid for some of the 

expenses for these projects and some of the expenses Lisa paid were included on the 

monthly statements she provided to him.

[¶11.] According to Lisa, in 2015, the couple’s romantic relationship had 

ended, and she asked him many times to move out, but he refused to do so. Both 

parties testified that Jared started sleeping on the couch at this time. Lisa further 

testified that in November 2019, while Jared was still living in the home, she 

consulted with an attorney about evicting Jared. The attorney drafted an eviction 

letter, but Lisa did not commence an official eviction action. However, she did file a 

petition to establish paternity, child custody, parenting time, and child support.

[¶12.] In February 2020, Jared moved out of the home. In his initial answer 

to Lisa’s petition, Jared did not dispute paternity or Lisa’s proposed joint legal 

custody of B.P. However, he believed he was entitled to 50% of the accrued equity 

in the home, and in December 2020, he filed an amended answer asserting 

counterclaims for, among other things, breach of implied contract and unjust 
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enrichment.1 He alleged the parties had agreed that the purchase of the 

Summerset home was a joint purchase and that they would jointly pay the monthly 

mortgage. He claimed that from September 2013 until February 2020, he 

contributed 50% to each month’s mortgage payment by reimbursing Lisa directly. 

He further claimed that Lisa’s acceptance of these payments indicated assent to be 

bound by an implied contract whereby he would receive a commensurate share of 

the accrued equity in the home in exchange for his payments. Alternatively, he 

claimed it would be inequitable to allow Lisa to retain his payments without him 

being awarded his share of the accrued equity.

[¶13.] In reply to his counterclaims, Lisa denied that the purchase of the 

home was to be a joint purchase. She claimed Jared “was not involved in any aspect 

of the purchase.” She further asserted that Jared “was supposed to pay rent but 

often could not” and “[t]here were many months that [he] did not pay his rent.” In 

her prayer for relief, she requested that Jared’s counterclaims be dismissed with 

prejudice and that she be awarded “such other and further relief as the [c]ourt 

deems just and equitable in the premises.”

[¶14.] During a one-day trial to the court, Lisa testified that Jared should not 

be awarded 50% of the accrued equity in the home because, to her, his payments 

were “the expenses of him living there, his food, room, board.” Lisa further testified 

that Jared had an option to be part of the purchase of the home but chose not to, 

1. Jared also asserted that Lisa breached two additional implied contracts—one 

related to the accrued equity in a vehicle and another related to the accrued 

equity in a camper—and alternatively, that she was unjustly enriched by his 

payments for the vehicle and camper. None of these claims are at issue on 

appeal.
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and as a result, the debt was hers and if she became delinquent on the loan, “he 

could pack his bags and walk out.” During cross-examination, she was asked 

whether “the renting concept” was “ever discussed[.]” She replied, “No.” She agreed 

that there was no lease agreement and that she never reported rental income on her 

taxes, but she disagreed that there was an agreement that Jared would pay half of 

the mortgage.

[¶15.] Jeannine Lecy testified as an expert witness for Lisa. Lecy had 

examined Lisa’s and Jared’s finances, including each party’s bank and credit card 

statements and Lisa’s Quick Books reports. Based on her examination, she 

concluded that between September 2013 and February 2020, Jared did not make 

payments for ten months and made only partial payments for 24 months. She 

explained that she did not have the handwritten statements Lisa had given Jared 

each month listing his amount due, so she “estimated what the rent would be by the 

payments that were made for that year.” Lecy concluded that Jared owed, but did 

not pay, a total of $22,084 between September 2013 and February 2020. This 

amount reflects $5,014.56 due from what Lecy considered to be partial payments 

and $17,069.59 due from the months in which she believed that he made no 

payment.

[¶16.] Jared testified that he never believed he was paying “rent” while living 

in the Summerset home. Rather, he “felt [they] were paying for the house” as joint 

owners and that they were “together as a family[.]” As further support that he was 

not paying “rent,” Jared testified that Lisa did not take “specific actions” when he 

could not pay his share of the expenses.
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[¶17.] At the conclusion of the case, the circuit court took the matter under 

advisement and directed the parties to submit proposed findings of fact and 

conclusions of law. Both parties submitted proposals, and thereafter, the court 

issued findings and conclusions (later amended), addressing shared parenting time, 

child support, and Jared’s counterclaims.

[¶18.] The court made findings related to the parties’ relationship and living 

arrangement, and in regard to Jared’s counterclaims, the court concluded that Lisa 

and Jared did not have an implied contract in which Jared was an equity owner in 

the Summerset home.2 Rather, the court found that the nature of their relationship 

in “the new home was a continuation of the relationship the parties operated under 

while in the Sturgis home” and was one in which “Lisa provided Jared a place to 

stay and other amenities with the expectation of reasonable compensation for the 

service.” The court also determined that Jared failed to prove his claim of unjust 

enrichment because he did not prove that Lisa was unjustly enriched by his 

payments to her or his improvements to the property. In addition to ruling against 

Jared on his counterclaims, the court further held that an implied landlord-tenant 

contract existed between Lisa and Jared and awarded Lisa $17,069.59 plus 10% 

interest in back rent.

[¶19.] Jared appeals, and his issues are restated as follows:

2. The court included an alternative conclusion that if Jared would be entitled 

to a portion of the home’s equity, such amount must be offset by amounts 

Lisa paid for the initial purchase and for the refinancing of the home as well 

as the amounts Jared owed for unpaid rent. Although Jared challenges this 

conclusion, given our resolution of his underlying claim, we need not consider 

this alternative ruling.
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1. Whether the circuit court erred in finding that there was 

no implied contract affording Jared a joint interest in the 

Summerset home.

2. Whether the circuit court abused its discretion in denying 

Jared’s claim for unjust enrichment.

3. Whether the circuit court erred in awarding Lisa back 

rent.

4. Whether the circuit court erred in determining the 

amount of back child support due.

Analysis and Decision

1. Whether the circuit court erred in finding that there 

was no implied contract affording Jared a joint 

interest in the Summerset home.

[¶20.] Jared contends that the circuit court’s factual findings are insufficient 

to support the determination that there was no implied contract in which the 

parties agreed that he had a joint interest in the home such that he would be 

entitled to a share of the home equity.3 In particular, he maintains that because 

the court acknowledged that he and Lisa had discussed financing options for the 

purchase of the home, “[t]his could only be an indication that the parties intended to 

be joint owners of the Summerset home, entitling [him] to equity in the same.” He 

also contends the court clearly erred in finding that the living arrangement in 

Summerset was a continuation of the couple’s arrangement in Sturgis. According to 

3. In her brief on appeal, Lisa contends that Jared’s breach of implied contract 

claim fails as a matter of law because, in her view, the statute of frauds 

required the agreement to be in writing. However, she did not raise this 

defense in her pleadings or at trial; thus, she cannot raise it for the first time 

on appeal. See Farmers Co-op Elev. Co. of Revillo v. Johnson, 90 S.D. 36, 42, 

237 N.W.2d 671, 674 (1976) (applying SDCL 15-6-8(c), which requires a party 

to affirmatively plead a statute of frauds defense).
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Jared, the landlord-tenant arrangement in Sturgis changed when they moved to the 

Summerset home because after moving to Summerset, he did not pay the same 

amount each month as rent like he did in Sturgis. He notes that, instead, Lisa gave 

him monthly statements identifying the household expenses, including the 

mortgage, and he paid his share. Jared also notes that he made contributions 

toward home improvements.

[¶21.] “A contract is either express or implied.” SDCL 53-1-3. “A contract is 

implied in fact where the intention as to it is not manifested by direct or explicit 

words by the parties, but is to be gathered by implication or proper deduction from 

the conduct of the parties, language used, or acts done by them, or other pertinent 

circumstances attending the transaction.” Setliff v. Akins, 2000 S.D. 124, ¶ 12, 616 

N.W.2d 878, 885 (quoting Weller v. Spring Creek Resort, Inc., 477 N.W.2d 839, 841 

(S.D. 1991)). “[A]s a general premise, the ‘existence of a valid contract is a question 

of law.’” Wright v. Temple, 2021 S.D. 15, ¶ 27, 956 N.W.2d 436, 446 (quoting

Koopman v. City of Edgemont, 2020 S.D. 37, ¶ 14, 945 N.W.2d 923, 926). However, 

if the existence and terms of a contract are in dispute, as they are here, those 

questions are for the fact finder. Id. This Court reviews the circuit court’s findings 

of fact for clear error. Icehouse, Inc. v. Geissler, 2001 S.D. 134, ¶ 21, 636 N.W.2d 

459, 465.

[¶22.] The circuit court’s findings of fact and conclusions of law (many of 

which are actually findings of fact) support its determination that Lisa and Jared 

did not intend, by their conduct, to enter into an implied agreement for a joint 

ownership interest in the home. Although the monthly contributions Lisa requested 
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from Jared after they moved into the Summerset home varied as compared to 

Jared’s $500 monthly contribution when they lived in Sturgis, Jared has not 

established that the court clearly erred in finding that the couple’s living 

arrangement in Summerset was a continuation of their arrangement in Sturgis and 

was not one of joint ownership. The court based this finding on “the conduct and 

other acts done by the parties as well as the pertinent circumstances attending the 

transaction in purchasing the Summerset home.” As the court observed, Jared paid 

rent while living in Sturgis and did not seek an equity share of that home when it 

sold. The court also noted that Jared had obtained renter’s insurance in Sturgis 

and similarly obtained renter’s insurance after Lisa purchased the Summerset 

home. The court further found, consistent with Lisa’s testimony, that Jared 

declined to sign on as a purchaser of the Summerset home “to save his money and 

credit to further expand his optometry practice.” Finally, the court considered that 

Jared did not have his name placed on the deed; did not participate in the closing; 

did not assist in obtaining homeowner’s insurance; and did not participate in or 

contribute any funds toward the refinancing.

[¶23.] Jared’s arguments on appeal, which relate primarily to the reasons he 

offered for why he proceeded as he did, essentially challenge the weight the court 

afforded to particular evidence. But under the clearly erroneous standard of review, 

this Court is “not free to retry the case as if it had never been heard before.” 

Melstad v. Kovac, 2006 S.D. 92, ¶ 6, 723 N.W.2d 699, 702 (citation omitted). 

Rather, we view the evidence as a whole “in a light most favorable to the court’s 

findings, and ‘we give due regard to its opportunity to observe the witnesses and the 
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evidence first hand.’” Bruggeman v. Ramos, 2022 S.D. 16, ¶ 51, 972 N.W.2d 492, 

509–10 (citation omitted). From our review of the evidence, the circuit court did not 

err in finding that there was no implied agreement between the parties for joint 

home ownership such that Jared and Lisa would share the acquired equity in the 

Summerset home.

2. Whether the circuit court abused its discretion in 

denying Jared’s claim for unjust enrichment.

[¶24.] Jared contends that “[i]f it was never [Lisa’s] intention to acknowledge 

[his] equal ownership interest in the house, then retaining his payment of half of all 

expenses is inequitable because [his] share of the household expenses was less than 

[Lisa’s] share.” Noting that five people were living in the home (Jared and Lisa, 

B.P., and Lisa’s two children from her prior relationship), he claims that “his true 

‘share’ of the mortgage and other expenses” would not have been one half of the 

monthly total. Rather, in his view, to be equitable, his share should have only been 

“the expenses associated with himself and half of B.P.’s expenses.”

[¶25.] In response, Lisa contends that she was not unjustly enriched by 

Jared’s payments. She asserts that contrary to Jared’s view, he did not pay half of 

the monthly expenses or half of the mortgage payments; instead, he only paid 

approximately 25% of the expenses from September 2013 to January 2020.

[¶26.] Because of our determination that no implied contract for joint home 

ownership exists defining the parties’ rights and obligations, Jared is without an 

adequate remedy at law and may proceed in equity via his unjust enrichment 

counterclaim. See Johnson v. Larson, 2010 S.D. 20, ¶ 11, 779 N.W.2d 412, 416–17 

(concluding that an equitable remedy is only available when there is no contract 
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controlling the parties’ relationship); see also Paweltzki v. Paweltzki, 2021 S.D. 52, 

¶ 42, 964 N.W.2d 756, 769. “Unjust enrichment is an equitable concept[,]” and we 

review a circuit court’s decision to grant equitable relief for an abuse of discretion. 

Dowling Family P’ship v. Midland Farms, 2015 S.D. 50, ¶ 10, 865 N.W.2d 854, 860 

(citation omitted). However, “[p]ursuant to an abuse of discretion standard of 

review, factual determinations are subject to a clearly erroneous standard.” 

Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W.2d 846, 850 (citation omitted). As 

the Court explained,

The question is not whether this Court would have made the 

same findings 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. . . . Doubts about whether the 

evidence supports the court’s finding of fact are to be resolved in 

favor of the successful party’s version of the evidence and of all 

inferences fairly deducible therefrom which are favorable to the 

court’s action.

Id. (quoting In re Estate of Olson, 2008 S.D. 97, ¶ 9, 757 N.W.2d 219, 222).

[¶27.] “Unjust enrichment occurs ‘when one confers a benefit upon another 

who accepts or acquiesces in that benefit, making it inequitable to retain that 

benefit without paying.’” Hofeldt v. Mehling, 2003 S.D. 25, ¶ 15, 658 N.W.2d 783, 

788 (citation omitted). Thus, to prevail on his claim for unjust enrichment, Jared 

was required to prove that Lisa received a benefit, that she was aware she was 

receiving a benefit, and that it would be inequitable to allow her to retain the 

benefit without reimbursement to Jared. See id. ¶ 16. Further, as the appealing 

party, Jared must establish that the circuit court’s findings of fact are clearly 

erroneous.
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[¶28.] A review of the record supports the court’s findings that Lisa received 

a benefit from Jared’s contributions toward the household expenses and 

improvements and was aware she was receiving a benefit. However, the record also 

supports the circuit court’s finding that Lisa was not unjustly enriched by the 

payments she received from Jared or from his improvements made to the property. 

The court found that Lisa provided the majority of the funds and labor toward the 

home improvements. The court further considered that Jared paid only 20% (more 

accurately 25%)4 of the household expenses during the time he lived in the 

Summerset home and deemed noteworthy the fact that a portion of Jared’s 

payments went to his obligation to pay expenses for his minor child. The court also 

noted that Lisa had to refinance her home and found this was necessary because 

Jared failed to pay his full share of the monthly expenses. None of these findings 

are clearly erroneous.

[¶29.] While Jared maintains it would be inequitable to allow Lisa to retain 

the benefit of his payments, he ignores that he also received a considerable benefit 

because of the parties’ living arrangement. In exchange for his payments, Lisa 

provided him and their child a place to live and necessities while she assumed all of 

the financial risk. Based on a review of the evidence and the circuit court’s findings, 

4. The circuit court determined that from September 2013 to January 2020, 

Lisa paid $627,140.27 in total household expenses and Jared reimbursed her 

for $126,036.27 of these expenses. Using the $627,140.27 number, the court 

determined that Jared only contributed 20% toward the total household 

expenses. However, the parties agree that the court’s 20% calculation is 

erroneous because Lisa only paid a total of $501,104. The court incorrectly 

added the amount Jared paid ($126,036.27) to Lisa’s $501,104 to arrive at 

this higher total expenditure by Lisa. When using $501,104 as the total 

amount Lisa paid, Jared’s $126,036.27 contribution was 25%.
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the court did not abuse its discretion in denying Jared equitable relief on his claim 

of unjust enrichment.

3. Whether the circuit court erred in awarding Lisa 

back rent.

[¶30.] As to the award of back rent to Lisa, Jared asserts that at no point 

prior to or during the trial did Lisa raise, as a claim to be decided by the court, that 

the parties entered into an implied landlord-tenant contract. He acknowledges that 

Lisa’s pleadings and the evidence at trial indicate that Lisa believed Jared was a 

mere tenant and that Lisa requested back rent in her proposed findings of fact and 

conclusions of law after the trial. However, he notes that Lisa initiated this suit as 

one to establish paternity, custody, child support, and shared parenting time and, 

that she did not, when he asserted counterclaims against her, request to amend her 

complaint to add this implied contract claim. He therefore maintains that it was 

improper for the circuit court to find a valid implied rental contract and to award 

back rent.5 He further claims that he was prejudiced because he had no notice that 

he would be required to respond to such a claim and “was not given a legitimate 

opportunity to contest the claim” with evidence.

[¶31.] In response, Lisa claims that “[i]t is clear from the proceedings and 

pleadings . . . that ‘rent’ and the issues of the nature of the relationship between the 

5. Jared filed an objection to Lisa’s proposed findings and conclusions that “the 

only implied contract in place was that of a renter in [her] home” and that 

Jared owed Lisa $17,069.59 in back rent. He asserted that her failure to 

plead any claim for breach of contract and her failure to move to amend her 

pleadings prior to or during trial precluded such relief. The circuit court did 

not specifically rule on this objection but effectively denied it by adopting 

most of Lisa’s proposed findings and conclusions.
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parties was going to be raised at trial.” She then directs this Court to the pre-trial 

checklist she submitted to the circuit court, wherein she related that an issue 

remaining for trial included “[w]hether Jared Pearson is entitled to any portion of 

Lisa’s house” in Summerset and the sub issue of “[a]mount to be offset if [the c]ourt

deems Pearson has any actual ownership.” She also notes her repeated references, 

in her reply to Jared’s counterclaim, to “rent” and Jared’s failure to pay it. In 

regard to the trial, she directs this Court to her testimony wherein she called 

Jared’s payments “rent” and referred to their living arrangement as a landlordtenant relationship. She also relies on the evidence she offered showing that Jared 

did not fully pay his share of expenses while living with her. Thus, in her view, the 

issue of an implied landlord-tenant contract was raised and tried, and as a result, 

the circuit court could award her back rent.

[¶32.] Under SDCL 15-6-15(b), “[w]hen issues not raised by the pleadings are 

tried by express or implied consent of the parties, they shall be treated in all 

respects as if they had been raised in the pleadings. Such amendment of the 

pleadings as may be necessary to cause them to conform to the evidence and to raise 

these issues may be made upon motion of any party at any time, even after 

judgment; but failure to so amend does not affect the result of the trial of these 

issues.”

[¶33.] While this Court has said that the decision to allow an amendment of 

the pleadings is reviewed for an abuse of discretion, see Wasserburger v. 

Consolidated Management Corp., 502 N.W.2d 256, 261 (S.D. 1993), Lisa did not 

move to amend her pleadings to add her implied contract claim. Therefore, the 
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question here is whether the issue of an implied landlord-tenant contract was tried 

by express or implied consent of the parties. As the Court has said, a failure to 

formally plead a claim or make an amendment to a pleading “is immaterial if the 

issue was tried by express or implied consent.” American Prop. Servs., Inc. v. 

Barringer, 256 N.W.2d 887, 890 (S.D. 1977), superseded on other ground by statute 

as recognized in Orr v. Cook, 2001 S.D. 31, 800 N.W.2d 353. Whether an issue was 

tried by express or implied consent requires a review of the record. Id. (examining 

the record as a whole to determine whether the issue was tried by implied consent); 

All Star Const. Co., Inc. v. Koehn, 2007 S.D. 111, 741 N.W.2d 736 (same); Oesterling 

v. Oesterling, 354 N.W.2d 735 (S.D. 1984) (same).

[¶34.] In Barringer, the Court noted that SDCL 15-6-15(b) is similar to the 

federal rule and after reviewing federal cases determined that: “The test for 

allowing an adjudication of an issue under FRCP 15(b) and SDCL 15-6-15(b) tried 

by implied consent is whether the opposing party will be prejudiced by the implied 

amendment, i.e., did he have a fair opportunity to litigate the issue, and could he 

have offered any additional evidence if the case had been tried on the different 

issue.” 256 N.W.2d at 891. If “there has not been a fair opportunity for a party to 

be heard on the issue and/or additional evidence could have been offered, any 

implied amendment would be prejudicial and no trial by implied consent exists.” Id. 

(holding that “it would be very prejudicial to the plaintiff to construe defendant’s 

passing references in the depositions and trial brief to plaintiff's inadequate efforts 

as a trial by implied consent of the defense of failure of consideration”); see also All 

Star Const., 2007 S.D. 111, ¶¶ 20–21, 741 N.W.2d at 742 (reversing award of 
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specific performance because “the issue was initially raised by the trial court when 

it delivered its ruling from the bench” and upon earlier notice, a party may have 

presented evidence related to the new remedy); Osterling, 354 N.W.2d at 737.

[¶35.] A review of the pleadings, trial testimony, and other record evidence 

does not support that Jared and Lisa agreed to litigate the question whether they 

entered into a valid landlord-tenant contract such that the circuit court could award 

Lisa past due rent. Lisa did not expressly plead, in either her complaint or her 

reply to Jared’s counterclaim, that such an implied contract existed, and she did not 

in either pleading request an award for past due rent. Further, while the pleadings 

and Lisa’s trial testimony certainly support that she believed Jared was a tenant in 

her home, she offered this evidence to dispute Jared’s claim that he was entitled to 

some of the equity in her home. Also, although Lisa presented detailed evidence 

and expert testimony evincing that Jared failed to pay what she called “rent,” this 

evidence related to her alternative claim that if the court were to award Jared an 

equity interest in the home, his failure to fully contribute to the monthly expenses 

should result in an offset for amounts unpaid.

[¶36.] Notably, the following exchange occurred when Lisa was specifically 

asked during cross-examination: “[Y]ou’re not making any claim for unpaid rent, 

correct?”

Answer: Do I - - I guess I don’t know what you’re trying to 

say. I mean, I - -

Question: Are you requesting that Jared pay you all of the 

back rent that you believe he hasn’t paid?

Answer: If indeed he - - if indeed you truly think he is a 

part-owner of the home, but I don’t believe he’s a 
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part-owner of the home, so I don’t - - I mean, if he 

believes he wants half the equity in the house, then 

I believe he should pay for the unpaid expenses in 

the last 14 months he hadn’t lived there . . . .

Question: Well, I understand your position, but that wasn’t 

my question. My question was, are you seeking to 

be paid back for payments that Jared didn’t pay to 

you?

Answer: If indeed he’s part-owner of the home, then I would 

expect for him to pay that back, yes.

Question: So what you’re asking the judge to do is if the judge 

agrees that Jared is part-owner of the home and is 

entitled to some equity, you are asking for his 

equity to be reduced by the amount that he owes 

you?

Answer: Absolutely.

Nothing in this exchange indicates that Lisa was seeking an award of back rent in 

the event the circuit court found that Jared was not entitled to an equity interest in 

the home.

[¶37.] Importantly, as multiple federal courts have explained, “an issue has

not been tried by implied consent if evidence relevant to the new claim is also 

relevant to the claim originally pled.” Kehoe Component Sales Inc. v. Best Lighting 

Prods., Inc., 796 F.3d 576, 595 (6th Cir. 2015) (emphasis added) (quoting Douglas v. 

Owens, 50 F.3d 1226, 1236 (3d Cir. 1995)); accord Koch v. Koch Indus., Inc., 203 

F.3d 1202, 1217 (10th Cir. 2000) (concluding that evidence was relevant to issues 

already being tried and party did not have notice that a new issue was being 

raised); Reynolds v. Tangherlini, 737 F.3d 1093, 1106 (7th Cir. 2013) (explaining 

that “a court will not imply a party’s consent to try an unpleaded claim ‘merely 

because evidence relevant to a properly pleaded issue incidentally tends to establish 
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an unpleaded claim’”); Diaz v. Jaguar Rest. Grp., LLC, 627 F.3d 1212, 1215 (11th 

Cir. 2010) (noting that “[t]he introduction of evidence arguably relevant to pleaded 

issues cannot serve to give a party fair notice that new issues are entering the case” 

(citation omitted)).

[¶38.] “The reasoning behind this view is sound since if evidence is 

introduced to support basic issues that already have been pleaded, the opposing 

party may not be conscious of its relevance to issues not raised by the pleadings 

unless that fact is specifically brought to his attention.” Fleck v. Jacques Seed Co., 

445 N.W.2d 649, 652 (N.D. 1989) (emphasis omitted) (citing a source quoting 6A 

Fed. Prac. & Proc. Civ. § 1493 (3d ed.)). Therefore, “[i]t must appear that the 

parties understood the evidence to be aimed at the unpleaded issue.” Kehoe, 796 

F.3d at 595 (quoting Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 358 (6th Cir. 

1992)). “Otherwise, the court runs the risk of violating the defendant’s procedural 

due process rights by imposing judgment upon a claim against which the defendant 

did not know he had to defend himself.” Id.

[¶39.] Similarly here, because Lisa has not identified anything in the 

pleadings or trial record establishing that the parties understood that the evidence 

she relied on in defense of Jared’s counterclaims would also be used to prove a 

separate unpled breach of contract claim and corresponding award of damages, the 

question whether the parties entered into an enforceable landlord-tenant contract 
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was not tried by implied consent.6 Therefore, the circuit court erred when it 

awarded Lisa back rent.

4. Whether the circuit court erred in determining the 

amount of back child support due.

[¶40.] The circuit court issued two conclusions related to back child support. 

Conclusion of law #46, which was proposed by Lisa, states that Jared owes Lisa 

“back child support for the 14-month period between February 2020 and March 

2021, inclusive, in the amount of $2,730, (which amount is the calculation of 14 

months x $195) with credit given for any amounts paid since March 2021.” 

Conclusion of law #99, which was proposed by Jared, states that “Lisa is entitled to 

back child support in the amount of $1,064, which represents Jared’s share of 

[B.P.’s] insurance costs for 13 months. Jared shall be given credit for any payments 

made since March 1, 2021.”7

[¶41.] Notwithstanding the fact that Jared proposed the language in 

conclusion #99 suggesting that $1,064 represents his share of B.P.’s insurance costs, 

6. Lisa notes that even though she did not demand such relief in her complaint, 

she “did not clearly state that she did not want back rent,” and thus, in her 

view, assuming an implied tenancy contract exists, the court could award 

such relief under SDCL 15-6-54(c). Under SDCL 15-6-54(c), “every final 

judgment shall grant the relief to which the party in whose favor it is 

rendered is entitled, even if the party has not demanded such relief in his 

pleadings.” (Emphasis added.) However, in Barringer, the Court said that 

“the relief to be granted under SDCL 15-6-54(c) is not unlimited, and such 

relief must be based upon the facts alleged in the pleadings and justified by 

the proof at trial.” 256 N.W.2d at 892 (emphasis added). Here, the circuit 

court’s award of back rent was not based on the facts alleged by Lisa in her 

pleadings, nor was it justified by the evidence adduced at trial; therefore, 

such an award would not be warranted under SDCL 15-6-54(c).

7. While conclusion #99 refers to 13 months, it appears the $76 amount was 

multiplied by 14 months (rather than 13) to arrive at the total of $1,064.
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he contends on appeal that the circuit court erred in ordering that he pay $1,064 in

addition to the amount ordered to be paid in conclusion #46. As Jared noted in his 

proposed conclusions to the court, the $195 monthly child support amount upon 

which the $2,730 award in conclusion #46 was based includes Jared’s share of B.P.’s 

insurance costs. And a review of Jared’s additional proposals reveals that his 

suggested $1,064 amount comes from his request that the court reduce the $195 

monthly child support obligation to $76 per month because of financial hardship. 

Therefore, it is not clear what amount the circuit court intended to award.

[¶42.] Aside from the fact that based on the parties’ proposals, the $1,064 

includes, rather than represents, B.P.’s insurance costs, it is further apparent that 

the circuit court, by adopting both Lisa’s and Jared’s proposed calculations, entered 

two competing and inconsistent child support awards. In fact, given her limited 

request on appeal that we affirm the court’s determination that Jared owes her 

$2,730 in back child support, Lisa appears to concede that the court erred by 

ordering Jared to pay an additional $1,064. We thus remand the question of back 

child support for the circuit court to redetermine Jared’s monthly child support 

obligation and recalculate the amount of back child support due. The court is also 

directed to issue amended findings and conclusions and an amended child support 

order.

[¶43.] Affirmed in part, reversed in part, and remanded.

[¶44.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices, 

concur.