author:
MEIERHENRY, Justice.
      SABERS, Justice

text:
    2004 SD 115
    Richard Duane BEALS and Melva Beals, Plaintiffs and Appellants, v. Connie L. WAGNER in her official capacity as Day County Treasurer, Defendant and Appellee.
    No. 23108.
    Supreme Court of South Dakota.
    Considered on Briefs On Aug. 23, 2004.
    Decided Oct. 13, 2004.

      William E. Coester, Milbank, South Dakota, Attorney for plaintiffs and appellants.
    Danny R. Smeins, Day County State’s Attorney, Webster, South Dakota, Attorney for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] Richard and Melva Beals appeal the trial court’s ruling that the hearing examiner’s decision did not overturn the county’s valuation of Beals’ property and thus, Beals are not entitled to a refund of 1999 taxes, which were paid according to the County’s initial valuation. We affirm.

FACTS

[¶ 2.] Richard and Melva Beals own real estate in Day County. This real estate was previously classified as non-agri-eultural land for real estate tax purposes but was vacated and reclassified as agricultural land in June of 1998. However, these changes were not properly recorded with the Register of Deeds until February of 1999. This resulted in the property being classified as non-agricultural property by the Day County Director of Equalization for the year 1999 and real estate taxes were calculated accordingly. Beals appealed the tax assessment to the South Dakota Department of Revenue. They contended that it was an error for the County to use the non-agricultural classification rather than the agricultural classification when calculating Beals’ taxes. They further contended that as a result of the incorrect classification, the County’s valuation of the real estate was in excess of its full and true value. A hearing was held and the hearing examiner issued a decision requiring the property to be “reclassified as agricultural property, if not already, and value[d] as such”. The decision also contained a conclusion of law stating:

Petitioners bear the burden of producing sufficient evidence to demonstrate that the assessed valuation of their property was in excess of its full and true value. Petitioners did not meet that burden.

Neither party appealed the decision. Pursuant to the decision, Day County reclassified the property as agricultural for the year 1999 and adjusted the tax accordingly. Day County did not alter the original valuation of the property because the County maintained that the original valuation had not been overturned by the hearing examiner’s decision. Beals paid the tax demanded under protest and filed a claim in the Fifth Judicial Circuit Court against Connie Wagner, Day County Treasurer, for recovery of the alleged 'wrongfully collected tax. Beals claim that in addition to reclassification, the original valuation of the property had been overturned and revaluation of their property was required by the hearing examiner’s decision. Beals further claim the revaluation would have reduced their 1999 real estate taxes and entitled them to a refund.

[¶ 3.] At trial, Beals’ refund claim was combined with two appeals involving Day County’s valuation of Beals’ real property for years 2000 and 2001. The two appeals and the refund claim were tried together. The two appeals were dismissed pursuant to Stipulation and Agreement of the parties, leaving only the matter of the refund claim for the trial court.

[¶ 4.] The trial court dismissed the refund claim. It found the hearing examiner’s decision affirmed the county’s original valuation and did not require revaluation of the reclassified property and thus, the Day County Treasurer committed no error in calculating and collecting the taxes owed by Beals. Beals appeal.

STANDARD OF REVIEW

[¶ 5.] At issue is the interpretation of and compliance with the decision of the hearing examiner. The former is a question of law and the latter is a mixed question of law and fact and both are reviewed de novo. Erdahl v. Groff, 1998 SD 28, ¶ 15, 576 N.W.2d 15, 18; Matter of Groseth Intern., Inc., 442 N.W.2d 229, 232 (S.D.1989); Permann v. South Dakota Dept. of Labor, 411 N.W.2d 113, 115-17 (S.D.1987).

ISSUES

I. Whether the trial court erred in determining Beals were not entitled to a refund under the hearing examiner’s decision.

II. Whether stipulations made as to the valuation of the real estate in question applied to the calculation of real property taxes due for 1999.

DECISION

Interpretation of the Hearing Examiner’s Decision

[¶ 6.] The source of this dispute lies primarily in the parties’ different interpretations of the hearing examiner’s decision. Neither party appealed the decision, thus making it final as to the issues it addressed. This Court has held, “[I]f the prior final judgment or order has been rendered by a court of competent jurisdiction, it ‘is conclusive as to all rights, questions, or facts directly involved and actually, or by necessary implication, determined therein,’ whether the court was correct at the time or not.” Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993) (quoting Raschke v. DeGraff 81 S.D. 291, 295-96, 134 N.W.2d 294, 297 (1965)). This Court has further held, “[A]ny claim over which an administrative agency had jurisdiction that is raised and rejected by the agency, is subsequently barred from being retried on the merits in the courts under the doctrine of res judicata.” McElhaney v. Anderson, 1999 SD 78, ¶ 13, 598 N.W.2d 203, 206. The parties had the right to appeal but did not do so. Thus, res judicata applies and the decision of the hearing examiner is final and binding. Only the meaning and enforcement of the decision are at issue here.

[¶ 7.] Although the hearing examiner’s decision is not the perfect example of clarity, we conclude that the decision affirmed the County’s original valuation of Beals’ property, and did not require revaluation. The stated issue in the decision was whether “the subject property [was] assessed higher than actual market value or assessed higher than comparable property”. Under South Dakota law at the time of the hearing, there was a presumption that the County’s assessment was correct. See Kocer v. Bon Homme County Com’rs, 1999 SD 155, ¶ 14, 604 N.W.2d 1, 4; Clarkson and Co. v. Harding County, 1998 SD 74, ¶ 6, 581 N.W.2d 499, 502; Richter Enter., Inc. v. Sully Cty., 1997 SD 61, ¶ 7, 563 N.W.2d 841, 843.

[¶ 8.] The hearing examiner placed the burden of overcoming this presumption on the taxpayers, Beals, as required by our law at that time. Id. Based on the evidence presented, the hearing examiner concluded Beals had not met the burden of overcoming the presumption in favor of the County’s assessment; consequently, the County’s valuation was not overturned. However, the hearing examiner did find portions of the property were improperly classified as non-agricultural and ordered those portions to be reclassified as agricultural. The order stated:

It is the order of the Hearing Examiner that the following shall be reclassified as agricultural property, if not already, and value as such.

The phrase “value as such” as used in this order, gives rise to the dispute in this case.

[¶ 9.] Beals contend this phrase meant the County’s original assessment was incorrect, and that a new valuation was required. Standing alone, this language could reasonably be interpreted to require revaluation. However, when the decision is read as a whole, it is clear that revaluation was not required because the hearing examiner had found that Beals failed to meet their burden of proving the original assessment was incorrect.

[¶ 10.] The relevant statement in the decision is contained in the conclusions of law. It reads:

Petitioners bear the burden of producing sufficient evidence to demonstrate that the assessed valuation of their property was in excess of its full and true value. Petitioners did not meet that burden.

(emphasis added). The meaning and intent of the conclusion is clear and unambiguous: the petitioners did not meet their burden of proving the County’s assessed value was wrong. To interpret the language of the order — “value as such”- — as requiring a new assessment would be in direct conflict with the decision’s unambiguous conclusion of law. Beals’ proposed interpretation of the decision would mean the hearing examiner concluded the original valuation was not excessive or erroneous but then ordered a revaluation anyway. The hearing examiner could not have intended such an inconsistent ruling. The hearing examiner’s order did not require the County to revalue the property. Any other interpretation of the decision would create an inconsistency between its provisions.

Property Value Stipulations

[¶ 11.] Alternatively, Beals claim the parties’ oral and written property value stipulations are binding and enforceable in its refund claim. The oral stipulation was made before the trial court took evidence in the combined trial of the appeals and the refund claim. That stipulation concerned the valuation of the real estate involved in the three matters. Following is the stipulation as presented to the trial court:

MR. SMEINS [attorney for appellee, Day County]: Your honor, it is our position that the value of the property apparently is at issue in all three proceedings. We’ve raised the issue whether the value can be re-determined and the Court can take that under advisement. We can file briefs and motions. But the issue of valuation we would stipulate that the value the Court determines for '99, 2000, and 2001 would all be the same in all three. Three matters.
MR. COESTER [attorney for appellants, Beals]: We would stipulate to that.
MR SMEINS: Then the court can rule on the refund action based on whether or not it can be re-valued but for 2000 and 2001 the issue is the same, it’s simply what’s the value of the unplatted property as ag- — ag classification.
THE COURT: Well, again, I’m not sure exactly what you are referring to because I don’t know anything about this case. What values are you stipulating to?
MR SMEINS: Your Honor, what we say, whatever the — the issue in the two appeals, appeals that have been made is the — is the value of the property as ag property. The issue in the refund action, according to the way they brought for them to prevail they have to redetermine the value of the property that the county did not value properly. Whatever value, we would agree that it’s the same for all three years. Whatever you decide.
MR COESTER: And we agree to that.

[¶ 12.] The parties stipulated that the land values used in each matter (both the appeals and the claim) should be the same. However, it is clear from the record that Day County did not concede revaluation was required in the refund claim. Day County preserved its position that the original valuation was not overturned by the hearing examiner’s decision. The stipulated value would be used for the refund claim only if the trial court first determined revaluation was required by the hearing examiner’s decision. Instead, the trial court determined that revaluation was not required by the hearing examiner’s decision, and we agree. As a result, the oral stipulation has no bearing on this appeal.

[¶ 13.] The written Stipulation and Agreements as to the property value in the two companion cases likewise have no bearing on the refund claim before us. These later Stipulation and Agreements pertained only to the two appeals brought before the trial court and did not pertain to the refund claim. They are not part of the trial court’s record of the refund claim and cannot properly be considered on appeal.

[¶ 14.] The trial court’s decision dismissing the Petitioners’ action for refund of real estate taxes is affirmed.

[¶ 15.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 16.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 17.] The hearing examiner’s determination that the Beals had the burden of proving that the assessed value of the subject property in 1999 was in excess of its full and true value, and failed to meet that burden, was largely based on our holdings in both Lincoln Township and Richter Enterprises Inc. See Lincoln Township v. South Dakota Board of Equalization, 1996 SD 13, ¶ 5, 543 N.W.2d 256, 257 (“Without an appraisal showing [Director’s] assessment was erroneous, taxpayer [has] not overcome the presumption of correctness.”); Richter Enterprises Inc. v. Sully County, 1997 SD 61, ¶ 14, 563 N.W.2d 841, 845 . (“Simply asserting that the valuation was in excess of the true and full value does not make it so.... Taxpayer must demonstrate that the tax assessment was unjust and inequitable.”). However, both of these cases are readily distinguishable from this case.

[¶ 18.] In both Lincoln Township and Richter Enterprises Inc., the property owners were appealing the decisions of their respective county directors of equalization to revalue their property absent any changes in the classification or use of the subject properties. Here, the Beals’ platted property had been recently vacated, which necessitated the county to reclassify and revalue the property. Yet, they failed to do so. Under these circumstances, there should not be a “presumption of correctness” regarding a valuation. To require the Beals to incur the expense of an independent appraisal when the county had an obligation to properly revalue the property is “unjust and inequitable.”

[¶ 19.] Due to the ambiguity in the hearing examiner’s order, the Beals did not immediately appeal the hearing examiner’s decision. When the matter later came before the trial court the hearing examiner’s findings were affirmed based on the fact that the Beals did not appeal the' decision in a timely manner, and therefore were estopped from contesting the values. However, it was actually the county who lost the lawsuit because the property was to be “reclassified as agricultural land” and “value[d] as such.” The governmental entity, the county, is the only one who can revalue the property as of the day of the assessment. The Beals could not do that. So, the county was the party that should have appealed the hearing examiner’s decision if they felt it was in error.

[¶ 20.] It is obvious that the property should have been revalued in 1999 from the fact that it was reclassified in 1998 and eventually revalued in 2000 and 2001, resulting in lower taxes to the Beals.

[¶ 21.] Based on the above, this case should be reversed and remanded.

      . SDCL 10-12-42 varies the maximum annual tax levy that may be imposed based upon the classification of the property.

        . SDCL 10-27-2 provides the basis for the claim.

      . The effect of a pre-evidence stipulation and the later Stipulation and Agreements are discussed at length in the briefs of the parties. However, due to this Court's resolution of the first issue, the stipulations have no bearing on this appeal.

      . The hearing examiner’s decision was made on August 16, 1999. Effective November 1, 2000, SDCL 10-3-16 was amended to state: "No legal presumption of correctness attaches to the director’s assessed valuation of property.”

      . In addition to finding that the Beals did not meet their burden in demonstrating that the assessed value was incorrect, the hearing examiner also ordered that the property “shall be reclassified as agricultural property, if not already, and valuefd] as such.” (emphasis added). This inherent ambiguity led to competing interpretations by the parties. On cross examination, Melva Beals testified as follows:
      Q: Did there — I reviewed the 1999 ruling, there is no conclusion by the Hearing Officer as to what the value was, would you agree?
      A: It said that they were supposed to reclassify it as agricultural land and value it as such.
      However, during Mr. Schlotte’s cross examination he testified as follows:
      Q: Was there a specific directive to the-to you as the Director of Equalization to revalue the property that has been the subject of the appeal?
      A: No. Actually, it’s basically stated as far as I was concerned, as far as the county was concerned, that they didn't bear the burden or they did bear the burden and they couldn’t prove that the value part was wrong. ■

      . The Order provides: "[t]his is the final decision in this matter unless you appeal the decision directly to circuit court within 30 days after this Order has been served on you.”

      . On cross examination Mr. Schlotte testified as to the revaluation in 2000 and 2001:
      Q: Now after 1999 then did you change the way that you assessed the Beals’ property ... ?
      A: Yes, we did.
      Q: And what method did you then apply or how did you then determine the value of the property for 2000 and 2001?
      A: For 2000 and 2001 what we on the county level did was we-that particular type of shore land with that steepness and that type of terrain is valued at Pickerel Lake at 280 a front foot. Due to the fact that the plat was vacated, what we did is we reduced that by 15 percent because we knew if they were gonna sell it into lots they’d have to re-plat. So we reduced it by 15 percent for the cost of replatting and, thus, assessed a frontage at 238 a front foot. And the ag land, the back portion that we actually say is ag land and the back lots that were vacated, by the way, we have no problem with them also as ag land at $180 an acre.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice.

license: Public Domain

text:
    2004 SD 113
    Suzanne CHRISTENSON, Plaintiff and Appellant, v. Rodney BERGESON, Defendant and Appellee.
    No. 23107.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Oct. 13, 2004.

      Michael D. Bornitz of Cutler & Dona-hoe, L.L.P., Sioux Falls, for plaintiff and appellant.
    Michael J. Schaffer, Sioux Falls, for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Suzanne Christenson brought suit against Rodney Bergeson alleging Bergeson negligently operated his motor vehicle, which resulted in a rear-end collision that injured Christenson. Christen-son’s motion for directed verdict on the issue of Bergesoris negligence and Chris-tenson’s lack of contributory negligence were denied by the trial court. The jury subsequently returned a special verdict for Bergeson, finding he was not negligent. Christenson filed a motion for judgment notwithstanding the verdict (j.rno.v.) or new trial, which was denied after oral argument. Christenson appealed contending the trial court abused its discretion in denying the motions. Affirmed in part and reversed in part.

FACTS AND PROCEDURE

[¶ 2.] On September 26, 2001, Suzanne Christenson was eastbound in her Ford pickup on Forty-ninth Street in Sioux Falls, South Dakota. As Christenson approached Louise Avenue, she decelerated in order to take a right hand turn. Chris-tenson did not use her turn signal.. Rodney Bergeson, who was traveling behind Christenson in his 2000 Ford Explorer, noted Christenson was in the process of making a right hand turn and accordingly he began to decelerate. Christenson abruptly stopped halfway through her turn. While Bergeson had sufficient time to take evasive maneuvers, he elected to steer around Christenson’s pickup rather than stop behind it in the right hand lane. Bergeson misjudged the distance and as a result his passenger side mirror struck the tail end of Christenson’s pickup leaving a small dent.

[¶ 8.] Following the accident, both parties pulled their vehicles into a parking lot to assess the damage. No accident report was filed, and both parties elected to continue on their respective ways. Bergeson received no further information about the incident until he was served approximately thirteen months later with Christenson’s suit alleging neck injuries as a result of the accident that required a costly neck fusion surgery.

[¶ 4.] On November 5 and 6, 2003, a trial was held before a Minnehaha County jury. Christenson testified at trial that her abrupt stop was caused by a bicyclist who came from nowhere which required her to stop mid-turn. Bergeson testified he did not see the bicyclist. Bergeson testified that he had ample time to elect between making a complete stop and steering around Christenson’s pickup, but elected the later as he felt he could do so safely. However, he misjudged the distance and as a result he struck the tail end of Christenson’s truck.

[¶ 5.] Following the close of evidence, Christenson moved for a directed verdict on the issue of Bergesoris negligence and Christenson’s lack of contributory negligence. The trial court denied the motion. The jury then returned a special verdict for Bergeson, finding he was not negligent. The jury never reached the issue of Chris-tenson’s contributory negligence.

[¶ 6.] On November 13, 2003, the trial court entered judgment on the verdict. Christenson moved for judgment notwithstanding the verdict (j.n.o.v.) or for a new trial. On January 13, 2004, after oral arguments on the motion, the trial court denied Christenson’s motions.

[¶ 7.] Christenson appealed both the denial of the motion for directed verdict, and the motion for j.n.o.v. or for a new trial. Christenson contended that reasonable minds could not have concluded, based solely on Bergeson’s cross-examination testimony, that Bergeson was not negligent in colliding with Christenson and the motion for directed verdict should have been granted. Christenson also contends the trial court erred when it did not grant her motion to exclude a contributory negligence jury instruction. Finally, Christenson requested this Court adopt a presumption of negligence on the part of a following driver in a rear-end collision.

[¶ 8.] Christenson did not order a complete copy of the trial transcript for inclusion in the appellate record. Instead, she ordered only those portions she deemed relevant to the issues she appealed. The partial transcripts included Bergeson’s cross-examination and the transcript of the January 13, 2004 j.n.o.v. motion hearing. Bergeson, after receiving notice of the appeal, ordered a partial transcript of his direct examination. Finally, Christenson failed to file a statement of issues as required by SDCL 15-26A-50 when the appellant does not obtain a complete trial transcript.

[¶ 9.] Accordingly, Bergeson raised a separate issue on appeal under this Court’s appellate rules of procedure. Bergeson contended this Court may impose sanctions for failure to comply with the rules of appellate procedure, up to and including dismissal of Christenson’s appeal.

STANDARD OF REVIEW

[¶ 10.] We review the trial court’s ruling on a directed verdict by the abuse of discretion standard. Gilkyson v. Wheelchair Express Inc., 1998 SD 45, ¶ 7, 579 N.W.2d 1, 3 (citing Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460 (additional citations omitted)). A trial court’s decisions and rulings on motion for directed verdict are presumed correct. Id. An abuse of discretion occurs when “no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.” Bridge v. Karl’s Inc., 538 N.W.2d 521, 523 (S.D.1995) (citing Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D.1992) (quoting Jensen v. Weyrens, 474 N.W.2d 261, 263 (S.D.1991))).

[¶ 11.] “The moving party is entitled to evidentiary consideration only where its evidence is uncontradicted or tends to amplify, clarify or explain the evidence in support of the verdict of the jury for the prevailing party.” Id. (citation omitted). On appeal, our task is to review the record and ascertain whether there is any substantial evidence to allow reasonable minds to differ. Id. (citing Haggar v. Olfert, 387 N.W.2d 45, 49 (S.D.1986)). This Court will not weigh trial evidence and substitute its own judgment for that of the jury. Id. (citations omitted).

[¶ 12.] We review the trial court’s ruling on j.n.o.v. under the same standard, that of abuse of discretion. Welch v. Haase, 2003 SD 141, ¶ 19, 672 N.W.2d 689, 696 (citing Fechner v. Case, 2003 SD 37, ¶ 16, 660 N.W.2d 631, 633). We review the testimony and evidence in a light most favorable to the verdict or to the nonmoving party. Sabag v. Continental South Dakota, 374 N.W.2d 349, 355 (S.D.1985) (citing Ziebarth v. Schnieders, 342 N.W.2d 234, 236 (S.D.1984)). “[T]hen without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdict....” Id. (citing Corey v. Kocer, 86 S.D. 221, 226-27, 193 N.W.2d 589, 593 (1972)).

[¶ 13.] The same standard is employed when reviewing a trial court’s denial of a motion for a new trial. Olson v. Judd, 534 N.W.2d 850, 852 (S.D.1995) (citing Treib v. Kern, 513 N.W.2d 908, 911 (S.D.1994)). We will not reverse the trial courts decision to grant or deny a new trial absent an abuse of discretion. Maybee v. Jacobs Motor Co., 519 N.W.2d 341, 344 (S.D.1994) (citations omitted).

[¶ 14.] “Trial courts enjoy broad discretion in determining how to instruct a jury.” Johnson v. Armfield, 2003 SD 134, ¶ 7, 672 N.W.2d 478, 481 (citing State v. Pellegrino, 1998 SD 39, ¶ 7, 577 N.W.2d 590, 594). Jury instructions are adequate when, considered as a whole, they correctly state the law and inform the jury. Id. ¶ 8 (citations omitted). The appellant has the burden to show the instruction given was in error, and that the error was prejudicial. Knudson v. Hess, 1996 SD 137, ¶ 6, 556 N.W.2d 73, 75 (citing Sybesma v. Sybesma, 534 N.W.2d 355, 359 (S.D.1995) (quoting Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64 (S.D.1992))).

ANALYSIS AND DECISION

[¶ 15.] 1. Whether Christenson’s failure to obtain the complete trial transcript allows this Court to dismiss her appeal without further consideration.

[¶ 16.] SDCL 15-26A-4 provides, in pertinent part: “Failure of an appellant to take any step other than timely service and filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal.” An appellant is required under SDCL 15-26A-50 to file a statement of issues when not including the entire transcript from the proceedings below. Western States Land & Cattle Co. v. Lexington Insurance Co., 459 N.W.2d 429, 431 (S.D.1990). However, failure to file the statement of issues is not always fatal to an appeal. Id. at 432. Lesser sanctions for failure to follow rules of appellate procedure are within the discretion of the Court. Id.

[¶ 17.] The intent behind SDCL 15-26A-50 is to provide the appellee with an opportunity to order additional parts of the transcript when the appellant has failed to order a complete transcript. Id. We have dismissed an appeal for failure to comply with the provisions of SDCL 15-26A-50, but only when the appellee was prejudiced as a result of the appellant’s failure to comply procedurally. See Meade Education Association v. Meade School District 46-1, 399 N.W.2d 885 (S.D.1987); State Highway Commission v. Olson, 81 S.D. 237, 132 N.W.2d 927 (1965). This Court’s concern in both Meade Education Association and Olson was that the failure to file the statement of issues precluded the Court from making a meaningful review of the issues on appeal. Western States Land & Cattle Co., 459 N.W.2d at 432.

[¶ 18.] The same is not true for the instant case. Bergeson had notice of the issues on appeal from Christenson’s Notice of Appeal and Docketing Statements. While not procedurally correct, the compliance with the intent of SDCL 15-26A-50 was sufficient to allow Berge-son to respond by ordering the transcript of his direct examination.

[¶ 19.] Finally, we are able to adequately and meaningfully review the issues on appeal despite the incomplete transcript. Thus, it cannot be said that Bergeson has been prejudiced under the facts of this case. Lacking prejudice, we see no reason for imposing the drastic remedy of dismissing Christenson’s appeal. However, compliance with our rules of appellate procedure remains the primary method of prevailing over jurisdictional and procedural challenges, and as a rule, should be complied with explicitly.

[¶ 20.] 2. Whether the trial court abused its discretion by denying Christenson’s motion for directed verdict, and in the alternative, her motion for judgment notwithstanding the verdict or new trial.

[¶ 21.] Christenson argues that the evidence was insufficient to support the jury verdict for Bergeson, and therefore the trial court erred by not granting her motion for directed verdict. Christenson employs the same argument contending error by the trial court for failing to grant her motion for j.n.o.v. or new trial.

[¶ 22.] Under SDCL 15-6-50(a), “[a] motion for directed verdict questions the legal sufficiency of the evidence to sustain a verdict against the moving party.” Sabag, 374 N.W.2d at 355 (citing Nelson v. Schroeder Aerosports, Inc., 280 N.W.2d 107, 108 (S.D.1979)). Such a motion requires the trial court to determine whether sufficient evidence has been presented in order to sustain the action. Gilkyson, 1998 SD 45, ¶ 7, 579 N.W.2d at 3 (citations omitted). The trial court must accept that evidence and all legitimate inferences which are most favorable to the nonmoving party. Id. “If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate.” Id.

[¶ 23.] Christenson’s main argument is that the trial court erred in failing to direct a verdict on the issue of Bergeson’s negligence. Christenson contends that because of Bergeson’s admission that he misjudged the distance between the two cars, the issue of negligence should not have gone to the jury. Rather, the issue should have been decided on a motion for directed verdict.

[¶ 24.] ’’Resolving negligence questions is an elemental jury function.” Wildeboer v. South Dakota Junior Chamber of Commerce, Inc., 1997 SD 33, ¶ 10, 561 N.W.2d 666, 669 (citing Robbins v. Buntrock, 1996 SD 84, ¶ 8, 550 N.W.2d 422, 425). Only in exceptional cases may the verdict be directed in favor of the party having the burden of proof. Langdon v. Reuppel, 81 S.D. 289, 291, 134 N.W.2d 293, 294 (1965). “[W]hen the evidence on behalf of the moving party is clear and full, credible and not contradicted, and is so plain and complete that reasonable minds could come to no other conclusion[,]” a motion for directed verdict may be granted. Id. (citation omitted). But if, when viewed in a light most favorable to the nonmoving party, there is any substantial evidence to sustain the cause of action or defense, it must be submitted to the finder of fact. SDCL 15-6-50(a). Denke v. Mamola, 437 N.W.2d 205, 207 (S.D.1989) (citations omitted).

[¶ 25.] The issue of contention between the parties was whether Bergeson’s choice to steer around Christenson’s pickup was negligent. Bergeson testified that he had ample room to so do, but misjudged the distance between the two vehicles. As a result, his passenger mirror clipped the tail end of Christenson’s pickup.

[¶ 26.] The evidence viewed in a light most favorable to the verdict does not support the jury’s verdict for Bergeson. Bergeson admitted he misjudged the distance and as a result impacted Christian-son’s vehicle. Bergeson provided no other reason for his failure to clear Christian-son’s vehicle, instead freely admitting he miscalculated the distance.

[¶ 27.] The jury’s verdict is clearly against the evidence presented in the record. It was not plausible for the jury to have accepted Bergeson’s account and found he had not breached his duty of care to Christenson. The trial court’s failure to grant Christenson’s motion for directed verdict is against the law and the circumstances of the case, and as such is an abuse of discretion. We do not need to address Christenson’s alternative argument that the trial court abused its discretion when it failed to grant Christenson’s motion for j.n.o.v. or new trial given our holding under Issue One. Reversed.

[¶ 28.] 3. Whether the trial court erred when it submitted a contributory negligence instruction to the jury.

[¶ 29.] Christenson contends the trial court erred when it submitted the contributory negligence instruction to the jury. Christenson has the burden to show the instruction given was in error, and that the error was prejudicial under SDCL 15-6-61. See Knudson, 1996 SD 137, ¶ 6, 556 N.W.2d at 75; Sybesma, 534 N.W.2d at 359; Chambers, 488 N.W.2d at 64. In order to prevail, error must be shown “which in all probability produced some effect upon the jury’s verdict and is harmful to the rights of the party assigning it.” Kjerstad v. Ravellette Publications Inc., 517 N.W.2d 419, 426 (S.D.1994) (citing State v. Michalek, 407 N.W.2d 815, 818 (S.D.1987)).

[¶ 30.] We believe Christenson has failed to show the trial court’s denial of her motion to remove the contributory negligence instruction prejudiced her in any manner. First, the contributory negligence instruction submitted to the jury accurately stated the law. Second, it is unlikely that the jury instruction produced prejudicial effect upon the jury’s verdict, as the jury did not reach the contributory negligence instruction in its deliberations. Instead, the jury found Bergeson was not negligent, thereby precluding it from addressing the issue of Christenson’s contributory negligence. Therefore, because the inclusion of the contributory negligence instruction was neither erroneous nor prejudicial to Christenson, we affirm the judgment of the lower court on the issue of the contributory negligence instruction.

[¶ 31.] 4. Whether this Court should adopt a presumption of negligence on the part of the following driver in a rearend collision.

[¶ 32.] Generally, negligence is not presumed. Stratton v. Sioux Falls Traction System, 55 S.D. 464, 472, 226 N.W. 644, 648 (1929). The mere happening of an accident or injury is insufficient to raise a presumption of negligence. Orrison v. City of Rapid City, 76 S.D. 145, 157, 74 N.W.2d 489, 495 (1956). Rather, negligence may be inferred from circumstances surrounding an injury or from the fact of the injury itself. Id.

[¶ 33.] South Dakota has never recognized the so called “rear-end collision doctrine.” Instead, we have required a plaintiff to plead and prove the negligent conduct of a defendant in a rear-end automobile collision. We do not accept the proposed presumption, as our current law provides sufficient avenues for a plaintiff to establish the duty and breach elements of a negligence cause of action.

The judgment of the trial court is affirmed as to Issues 1, 3 & 4 and reversed as to Issue 2.

[¶ 34.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . SDCL 15-26A-50 provides:
      Unless the entire transcript is to be included, the appellant shall within the ten days time provided in § 15-26A-48 file with the clerk of the circuit court a statement of the issues he intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript of other parts of the proceedings to be necessary, he shall, within ten days after the service of the order or certificate and the statement of the appellant file with the clerk of the circuit court and serve on the appellant, the court reporter, and the clerk of the Supreme Court a designation of additional parts to be included. Unless within ten days after service of such designation the appellant has ordered such parts and has so notified the appellee, the appellee may within the following ten days either order the parts or move in the circuit court for an order requiring the appellant to do so.

      . SDCL 15-6-50(a) provides:
      A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion has not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

      . SDCL 15-6-61 provides:
      No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defeat in the proceeding which does not affect the substantial rights of the parties.


author: ZINTER, Justice.

text:
    2004 SD 116
    David R. REASER, Plaintiff and Appellant, v. Jami D. REASER, Nee Twiss, Defendant and Appellee.
    No. 23115.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 23, 2004.
    Decided Oct. 13, 2004.

      Thomas E. Brady of Brady & Plumier, Spearfish, South Dakota, Attorneys for plaintiff and appellant.
    Gregory J. Barnier, Rapid City, South Dakota, Attorney for defendant and appel-lee.
   ZINTER, Justice.

[¶ 1.] Former husband appeals an order setting aside the portions of his four-year-old divorce decree that dealt with child custody, child support, alimony, and property division. The decree was set aside because the trial court found that it had been obtained by a fraud upon the court. We affirm.

Facts and Procedural History

[¶ 2.] David and Jami Reaser were married in August 1985. From the fall of 1989, through the end of their marriage, the parties lived on David’s parents’ family ranch. David worked on the ranch, and Jami worked in the home taking care of the children. David was also involved in a ranching partnership arrangement with his father during this time.

[¶ 3.] The parties separated in the fall of 1998. Jami took the parties’ two children with her to live at her grandmother’s home, approximately four miles from the ranch. In January of 1999, David initiated divorce proceedings. David was represented by attorney Michael Ortner, and Jami was not represented.

[¶ 4.] The parties entered into a stipulation, prepared by Ortner, concerning child custody, child support, alimony, and property division. Under the stipulation, David was to have custody of the children. The stipulation further provided that Jami waived any claim to alimony and David relieved Jami of any obligation for child support. Ortner presented this stipulation and a proposed decree of divorce to Circuit Judge Janine Kern. However, Judge Kern refused to grant the divorce because the stipulation did not provide for child support for the children.

[¶ 5.] Consequently, the parties modified the stipulation to establish a child support obligation for Jami. However, pri- or to submitting this revised stipulation to the court, Ortner drafted a “document of private agreement” in which Jami “was to have no duty to pay ongoing [child] support despite the language of the Divorce Decree.” This “private agreement” was kept in Ortner’s office and was not disclosed to Judge Kern when the revised stipulation and proposed decree were resubmitted six days later.

[¶ 6.] Thus, the divorce decree was obtained despite the fact that it was known that Judge Kern would not have granted it without a child support obligation. Furthermore, the revised stipulation neither disclosed the underlying financial circumstances of the parties nor whether Jami had been advised of the size and value of the marital estate. Consequently, the court was also unaware of potential inequities in the division of property.

[¶ 7.] In the fall of 2001, less than three years after the divorce, David’s parents sold their ranch. From the proceeds, they gave David a gift of over $800,000. In November of that same year, David moved to Cody, Wyoming with his new wife and the children.

[¶ 8.] In May 2002, Jami moved for a change in custody. She also sought child support from David. The motions were heard by Circuit Judge Thomas Trimble. During the course of that hearing, the parties’ private agreement first came to light. Following an evidentiary hearing, Judge Trimble denied Jami’s motion for change of custody and told David that he was free to seek child support from Jami.

[¶ 9.] David then initiated a child support action against Jami. The child support matter was heard by a referee, who recommended that Jami pay current child support and arrearages. The referee’s recommendation was adopted by the circuit court on March 31, 2003, and became an interim order for support. Jami subsequently filed motions to set aside the interim order for support, to approve a visitation agreement, and to eliminate the child support arrearages. Jami’s supporting affidavit asserted that her agreement to make no claim to a portion of the marital assets, David’s interest in the family ranch partnership, and alimony was based on David’s private agreement to not seek child support.

[¶ 10.] Jami’s motions were heard by Judge John J. Delaney, who expressed serious concern about the deception created by the private agreement. Because he ultimately concluded that the parties’ decree of divorce was obtained by fraud upon Judge Kern, he went beyond the specific relief requested in Jami’s motion, and he vacated those portions of the divorce decree that dealt with child custody, child support, alimony, and property division.

[¶ 11.] David then filed a motion asking Judge Delaney to reconsider. Among other things, the motion to reconsider pointed out that even if there had been a fraud upon the court, Judge Trimble determined the best interests of the children in a contested child custody hearing. The motion to reconsider also pointed out that there had been no showing of a change in circumstances sufficient to change the custody arrangement ordered by Judge Trim-ble.

[¶ 12.] A hearing on David’s motion to reconsider was held on January 5, 2004. On January 22, Judge Delaney signed a written opinion granting the motion to reconsider and vacating that portion of his order that had vacated Judge Trimble’s child custody determination. However, on January 23, 2004, before Judge Delaney’s written decision was filed, David filed a notice of appeal from the original decision vacating the divorce decree. On January 27, 2004, four days after the notice of appeal was filed, Judge Delaney’s Amended Order reinstating David’s child custody was filed.

[¶ 13.] David appeals raising the following issues:

1. Whether the trial court erred in setting aside the parties’ decree of divorce over four years after its entry.
2. Whether the trial court erred in vacating the original child custody provision, and, in the alternative, whether the trial court properly amended the child custody decision after the notice of appeal had been filed.

Analysis and Decision

Authority to Set Aside a Four Year Old Decree of Divorce Obtained by Fraud Upon the Court.

[¶ 14.] Judge Delaney originally set aside the child custody, child support, alimony, and property provisions of David and Jami Reaser’s 1999 divorce decree. The trial court did so, essentially upon its own motion, because of the parties’ private agreement and the court’s finding of a fraud upon the court. Because of the seriousness of this matter, the trial court’s relevant findings of fact are set forth verbatim. The trial court found:

11. That at the institution of these proceedings [David] was represented by Mr. Michael Ortner.
12. That at the institution of the divorce proceedings [Jami] was unrepresented.
13. That prior to the completion of the divorce action [David] transferred his interest in the family ranching operation back to his father and mother.
14. That a stipulated divorce, placing custody of the children with [David], waiving alimony claims by [Jami], and waiving any child support to be paid by [Jami] to [David], was presented to the [c]ourt.
15. The [e]ourt refused to issue a [divorce [d]ecree based on the initial stipulated agreement because child support was not meaningfully addressed.
16. A second Stipulation was prepared and submitted to the [e]ourt which purported to establish a child support obligation from [Jami] to [David].
17. At the time the second Stipulation was prepared, unbeknownst [to the] [c]ourt there was a contemporaneous agreement between the parties [that] again waived any support obligation from [Jami] to [David].
18. Neither Stipulation disclosed to the [c]ourt the underlying financial circumstances of the parties, nor did it alert the [c]ourt to the fact that there may have been a gross inequity in the division of property between the parties.
19. There is no evidence upon which a [c]ourt can conclude that [Jami] was informed of her rights or of the size and value of the marital estate prior to the preparation of the Divorce Stipulation.
20. The [original trial court] executed the Divorce Decree ignorant of the fact that the parties had entered into a secret agreement drafted by counsel for [David] to bar the collection of any support by [David] from [Jami].
21. The secret agreement purports to do precisely what the [c]ourt had specifically refused to approve, and the execution of the Decree was predicated upon the express representation, through the Stipulation, that a meaningful support obligation was established.
22. The “secret” or undisclosed agreement entered into between the parties was contrary to the [c]ourt’s previous direction to counsel after review of the first [Stipulation.
23. That the [previous trial court] would not have executed the Decree of Divorce, based upon the second [Stipulation presented to it, had it been specifically advised by counsel and had it known that in fact the contemporaneous agreement waiving child support had been made.
24. The waivers of support and alimony appear to the [cjourt to be intended to preclude any property division in funds or ranch property of the parties’ sizeable interest in the family ranching operation.
25. The purported transfer from [David] to his father, during these divorce proceedings, of his interest in the family ranch operation was not an arms length transaction when considered in light of the income tax records and other limited financial information made available to the [c]ourt.
26. That when [Jami] subsequently moved for custody of the children in 2002, [David] “reneged” upon the secret agreement and attempted to obtain several years of past due child support.
27.That the review of the issues of support and visitation[,] which gave rise to these proceedings[,] led to the [c]ourt’s discovery of the fraud perpetrated upon it in the course of the initial proceedings, granting the Divorce Decree.

[¶ 15.] Notwithstanding these findings, David argues that, rather than setting aside the decree, the trial court should have only voided the parties’ private agreement. David also contends that the court erred because the motion to set aside this decree was not made within one year as required by SDCL 15 — 6—60(b). He points out that in a similar case, Anderson v. Somers, 455 N.W.2d 219 (S.D.1990), this Court declined to set aside a decree two years after its entry.

[¶ 16.] We have held that:

“Relief under SDCL 15-6-60(b) is granted only upon a showing of exceptional circumstances.” “The purpose of Rule 60(b) is to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscious that justice be done in light of all the facts.”

Divich v. Divich, 2002 SD 24, ¶ 8, 640 N.W.2d 758, 760 (citation omitted). We review decisions to grant or deny Rule 60(b) relief under the abuse of discretion standard. Id.

[¶ 17.] At the outset, it should be noted that factually, David has not challenged Judge Delaney’s findings that Judge Kern would not have entered the decree had she known about the secret agreement. Therefore, it does not appear that there is any dispute that this decree was obtained by a fraud upon the court.

[¶ 18.] With respect to the law, we observe that the time limitation in SDCL 15-6-60(b) provides that a motion “shall be made ... not more than one year after” the order was entered. However, the statute also provides that a court is not so limited in its independent power to set aside a judgment or order in cases of fraud upon the court:

It should be noted ... that there is an express saving clause in Rule 60(b), which provides that ‘this rule does not limit the power of a court ... to set aside a judgment for fraud upon the court.’ There is no time limit on the exercise of this power. And where it is possible to bring an independent action attacking the judgment, rather than proceeding by motion, the time limits of the rule do not apply.

Gifford v. Bowling, 86 S.D. 615, 623-624, 200 N.W.2d 379, 383 (1972) (citation omitted). In other words, “the power of a defrauded court to grant relief is a sweeping, plenary power that is not subject to any rigid time limitation as is a motion under 60(b)(3).” Id. (citation omitted).

[¶ 19.] This type of fraud is different than that associated with fraud upon the parties.

‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication ... In addition, it has been said that ‘[i]n order to set aside a judgment or order because of fraud upon the court under Rule 60(b), ... it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ Courts have found fraud upon the court only where there has been the most egregious conduct involving a corruption of the judicial process itself. Examples are bribery of judges, employment of counsel to ‘influence’ the court, bribery of the jury, and the involvement of an attorney (an officer of the court) in the perpetration of fraud.

Id. at 625, 200 N.W.2d at 384 (citations omitted). Here, under Judge Delaney’s findings, the actions of these parties and the attorney are egregious conduct involving corruption of the judicial process itself. Considering those findings, this fraudulent conduct may have violated a criminal statute, and it certainly violated the Rules of Professional Conduct for attorneys.

[¶ 20.] Although this record is not perfectly clear, the conduct involving the second stipulation, when considered in conjunction with the private agreement, could conceivably violate SDCL 22-11-22, which provides that:

Any person who prepares any false book, paper, record, instrument in writing, or other matter or thing with intent to produce it or allow it to be produced as genuine in any trial, proceeding, inquiry, or investigation authorized by law, is guilty of a Class 6 felony.

A reasonable person could conclude that under the facts of this case, the making of the second stipulation was the preparation of a false instrument made with intent to produce it or allow it to be produced as genuine in a proceeding authorized by law.

[¶ 21.] Moreover, under the trial court’s findings, Ortner’s preparation of, and participation in, the concealment of the private agreement violated the Rules of Professional Conduct. “Because the courts of this state must rely upon the assistance of attorneys to ascertain the truth of matters before them, attorneys must be fair and forthright with the courts.” Matter of Discipline of Mines, 523 N.W.2d 424, 426 (S.D.1994) (citing Matter of Discipline of Schmidt, 491 N.W.2d 754, 755 (S.D.1992)). Moreover, “the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth. It requires every attorney to be fully honest and forthright.” In re Discipline of Wilka, 2001 SD 148, ¶ 15, 638 N.W.2d 245, 249. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Mines, 523 N.W.2d at 426.

[¶ 22.] Ortner’s conduct appears to violate that duty of candor toward the court. Rule 3.3 of the Rules of Professional Conduct provides in relevant part that:

(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall timely take reasonable remedial measures, including, if necessary, disclosure to the tribunal....
(d) In an ex parte proceeding, except grand juries and applications for search warrants, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

[¶ 23.] Here, the trial court’s findings indicate that both Ortner and the parties were dishonest in their representations and disclosures to the original divorce court. Their participation in, preparation of, and failure to disclose the “private agreement” allowed them to circumvent the original trial court’s express direction. It was egregious conduct that corrupted the judicial process through the involvement of an officer of the court. This type of fraud upon the court is not subject to the Rule 60(b) one year time limitation. Consequently, Judge Delaney was authorized, upon his own motion, to vacate the relevant portions of the decree despite the fact that it had been in effect for over four years.

Setting Aside a Child Custody Decision after a Notice of Appeal Has Been Filed.

[¶ 24.] When the parties were divorced in 1999, David received primary physical custody of their children by stipulation. As a result of Jami’s motion to change custody in 2002, Judge Trimble conducted an evidentiary hearing and determined that it was in the best interests of the children for David to retain custody. Because Judge Trimble’s custody order was entered following a contested hearing, David argues that Judge Delaney initially erred in vacating that custody order without a showing of a substantial change in circumstances. David points out that we have often indicated that “[t]o modify a custody decree after a contested hearing, the moving party must show a substantial change in circumstances.” Price v. Price, 2000 SD 64, ¶ 52, 611 N.W.2d 425, 436 (citing Mayer v. Mayer, 397 N.W.2d 638, 640 (S.D.1986)). We agree that, under settled authority, setting aside a custody adjudication requires a showing of a substantial change in circumstances, and that showing was not made to Judge Delaney.

[¶ 25.] However, Judge Delaney did correct the matter. On December 4, 2003, David filed a motion for reconsideration, which specifically raised the child custody issue. A hearing was then held on that motion on January 5, 2004, and Judge Delaney subsequently amended his order so that Judge Trimble’s prior custody determination would remain in full force and effect. The problem is that Judge Delaney’s amended order was not filed until January 27, 2004, four days after David had filed a notice of appeal to this Court.

[¶ 26.] Because Judge Delaney’s amended order dealt with the subject matter of this appeal, and because it was filed after David’s notice of appeal was filed, Jami argues that the trial court lacked jurisdiction to enter the amended order. David responds that Jami did not file a notice of review on this issue. David asks this Court to affirm Judge Delaney’s amended order reinstating Judge Trim-ble’s custody determination.

[¶ 27.] Although Jami did not file a notice of review, “[j]urisdiction may be raised at any time.” Pennington County v. State ex rel. Unified Judicial System, 2002 SD 31, ¶ 9, 641 N.W.2d 127, 130 (citing Devitt v. Hayes, 1996 SD 71, ¶ 6, 551 N.W.2d 298, 300). Furthermore, “[t]his Court may raise issues of jurisdietion sua sponte.” Id. (citations omitted). We review questions of jurisdiction de novo. Id. (citations omitted).

[¶ 28.] “An appeal from a judgment or order strips the trial court’s jurisdiction over the subject matter of the judgment or order except as to certain trivial matters; the Supreme Court then has jurisdiction until determination of the appeal.” Ryken v. Ryken, 440 N.W.2d 307, 308 (S.D.1989) (citing Matter of D.H., 354 N.W.2d 185 (S.D.1984)). Trivial matters include such things as acting on matters collateral to the subject matter of the appeal, enforcing judgments in the absence of a stay, and providing interim alimony. In re Estate of Hoffman, 2002 SD 129, ¶ 17, 653 N.W.2d 94, 100; Cutler-Christians v. Christians, 2001 SD 104, ¶ 9, 633 N.W.2d 176,178. Courts:

have permitted further proceedings in the same case at the trial court level during appeal when the subject matter of the appeal would not be affected by such proceedings. Matter of Tollefsrud’s Estate, 275 N.W.2d 412, 417 (Iowa 1979); Majnaric v. Majnaric, 46 Ohio App.2d 157, 158-59, 347 N.E.2d 552, 554 (1975); Southland Corp. v. Village of Hoffman Estates, 130 Ill.App.2d 311, 316-17, 264 N.E.2d 451, 454-55 (Ill.App1970); Hunter v. Hunter, 44 Wis.2d 618, 620, 172 N.W.2d 167, 169 (Wis 1969); Osborn v. Riley, 331 So.2d 268, 271 (Ala.1976); Blackmon v. Blackmon, 525 S.W.2d 711, 713 (Tex.Civ.App.1975). In these instances, the trial court is restrained from entering any order that would change or modify the judgment on appeal or have the effect of interfering with review of the judgment.

Hoffman, 2002 SD 129, ¶ 17, 653 N.W.2d at 100, n. 7.

[¶ 29.] Trial courts also retain jurisdiction to correct clerical mistakes arising from oversight or omission. SDCL 15-6-60(a). This type of error may be corrected during the pendency of an appeal before the settled record is transmitted, and thereafter, with leave of the Supreme Court. Id. Other courts have explained the nature of clerical errors.

“ ‘[Clerical’ is employed in a broad sense as contradistinguished from ‘judicial’ error and covers all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. In other words, the distinction does not depend so much upon the person making the error as upon whether it was the deliberate result of judicial reasoning and determination, regardless of whether it was made by the clerk, by counsel or by the judge.” (citations omitted).
“Moreover, ... FRCP 60(a), ... has been interpreted by federal courts ... “[A ‘clerical error’ under Rule 60(a)] is a type of mistake or omission mechanical in nature[,] which is apparent on the record and which does not involve a legal decision or judgment by an attorney.” (citations omitted).

Ramis Crew Corrigan & Bachrach, LLP v. Stoelk, 193 Or.App. 700, 92 P.3d 154, 158 (2004). Thus, clerical corrections include the implementation of what was intended and what the court had accepted as the proper resolution. United States v. Mansion House Center Redevelopment Co., 118 F.R.D. 487, 490 (1987) (citation omitted). They also include failure to memorialize part of a decision. Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669 (5thCir.1986).

[¶ 30.] In this case, Judge Delaney heard the motion to reconsider on January 5, 2004, prior to the filing of the appeal. Moreover, Judge Delaney signed the amended order on January 22, 2004, one day before David filed his notice of appeal. Although the order was not filed until January 27, 2004, this physical act of filing was not a “legal decision.” Rather, we believe it was the type of trivial or clerical matter that is permitted after an appeal has been filed. After all, Judge Delaney’s judicial decision had been made, and the omission was a simple delay in the clerical act of filing the order with the clerk. Moreover, the amended order simply memorialized the decision that had been made before the notice of appeal was filed. Because we believe that the. trial court retained jurisdiction over this type of clerical correction, there was no jurisdictional error in filing the previously signed order that reinstated Judge Trimble’s child custody order.

[¶ 31.] Affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Ortner filed an affidavit admitting these facts. He also admitted that the “agreement of non-support” was signed by both parties in his office, and that he retained the original, signed "Private Contractual Agreement.”

      . The parties' private agreement was signed on March 29 and March 30, 1999. Without knowledge of the private agreement, Judge Kern approved the second stipulation on April 6, 1999.

      . When the divorce proceedings began, David transferred his interest in the family ranching operation back to his parents. At that time, he had credit card and cash advance debts related to gambling of $70,000.

      . Judge Delaney’s amended order reinstated Judge Trimble’s child custody determination, but left intact Judge Delaney's original order vacating the child support, alimony and property provisions. Judge Delaney never vacated the original decree granting the divorce.

      . The decision to set aside most of the decree was not made pursuant to Jami's motion. It was made sua sponte by the trial court, which vacated the decree nunc pro tunc.

        . SDCL 15 — 6—60(b) provides in relevant part:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
      The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. Section 15-6-60 does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided by statute or to set aside a judgment for fraud upon the court.

      . Therefore, David’s reliance upon Anderson is misplaced. Supra ¶ 15.

      . An order is not effective until it is signed and filed. SDCL 15-6-58 provides in relevant part:
      A judgment or an order becomes complete and effective when reduced to writing, signed by the court or judge, attested by the clerk and filed in his office.

      . "This rule applies even when an appellee files his motion prior to the filing of appellant's notice of appeal.” Id. at 308 (citations omitted).


author: WIGGINS, Justice.

text:
    Duane KENNEDY, Michael Ashby, Dennis Phillips, Stephen Pierce, Michael Sells, and Bill Medland, Appellants, v. The STATE of Iowa and the Iowa Department of Natural Resources, Appellees.
    No. 03-0650.
    Supreme Court of Iowa.
    Oct. 6, 2004.

      Pamela J. Walker and Mark D. Sherini-an of Sherinian & Walker, P.C., Des Moines, for appellants.
    Thomas J. Miller, Attorney General, Gordon E. Allen, Deputy Attorney General, and Kerry K. Anderson, Assistant Attorney General, for appellees.
   WIGGINS, Justice.

Current and former peace officers brought an action against the State of Iowa and the Iowa Department of Natural Resources (DNR) for overtime compensation under the Fair Labor Standards Act (FLSA). Because we agree with the district court’s decision that: (1) the peace officers are not entitled to be compensated for their drive time; (2) the State adopted a 29 U.S.C. § 207(k) (1988) workweek; (3) the State’s policy of requiring the peace officers to take leave for absences less than a day does not violate the FLSA’s salary-basis test; (4) the peace officers are not entitled to interest on their damages from the date of filing their action; (5) the peace officers’ meal time is compensable; and (6) the filing of the action in federal court tolled the statute of limitations, we affirm the district court as to those matters. We, however, conclude the State cannot reduce the peace officers’ overtime claims for hours off under its work-schedule-adjustment policy and reverse the district court as to that issue. Therefore, we affirm the district court’s judgment in part, reverse it in part, and remand the case to the district court to redetermine the damages, if any, consistent with this decision.

I.Background Facts and Procedure.

The parties submitted this case on a stipulated record. The record included a stipulation of facts, exhibits, depositions, and testimony given in the companion case of Raper v. State, 688 N.W.2d 29, 34 (Iowa 2004), which we filed this day. The six plaintiffs are certified peace officers who are current and former employees of the DNR. The DNR has classified these peace officers as exempt under the FLSA. The peace officers sought overtime wages, liquidated damages, and attorney fees for alleged violations of the overtime provisions of the FLSA.

The peace officers originally filed their claim in federal court on February 16, 1996. The State moved to dismiss the case for lack of subject matter jurisdiction. On June 21, 1996, the federal district court dismissed the peace officers’ entire case for lack of subject matter jurisdiction, which the Eighth Circuit later affirmed. Raper v. Iowa, 115 F.3d 623 (8th Cir.1997). Before the federal district court dismissed the peace officers’ case for lack of subject matter jurisdiction, they filed this action in state court in April 1996. The district court stayed this case pending the outcome of Anthony v. State, 632 N.W.2d 897 (2001), because Anthony was preclusive on the issue of liability and binding on the parties in this action. After our decision in Anthony, this case was set for trial.

On March 18, 2003, the district court issued the first part of its order. Applicable to this appeal, the district court found: (1) the State has proven the existence of a twenty-eight-day work period; (2) the peace officers’ travel time should be excluded from their overtime claims; (3) the peace officers’ meal time is compensable; (4) there is no liability for overtime wages after January 31, 1996, despite the peace officers’ contention the State’s continuing policy of requiring employees to take vacation, sick leave, or other forms of leave for absences of less than a day violates the FLSA’s salary-basis test; (5) the peace officers’ overtime hours should be reduced by the amount of work-schedule-adjustment hours they have used; (6) the peace officers are not entitled to interest on their damages from the date of filing their action; and (7) the statute of limitations was tolled by the filing of the federal lawsuit.

On April 14, 2003, the trial court issued its second order regarding damages and entered its judgment. It awarded the peace officers nearly $70,000 in damages. Both parties appeal.

II. Issues.

The peace officers ask us to review the following: (1) whether the peace officers are entitled to be compensated for their drive time; (2) whether the State adopted a 207(k) workweek; (3) whether the State is required to reduce the peace officers’ overtime claims for hours off under its work-schedule-adjustment policy; (4) whether the State’s policy of requiring the peace officers to take leave for absences for less than a day violates the FLSA’s salary-basis test; and (5) whether the peace officers are entitled to interest on their damages from the date of filing their action in state court.

The State raises for review: (1) whether the peace officers’ meal time is compensa-ble; and (2) whether the filing of the action in federal court tolled the statute of limitations. We will discuss the facts as they relate to the issues.

III. Scope of Review.

We set out the standard of review in Raper, 688 N.W.2d at 36, where we stated:

Our review is for errors at law. The trial court’s factual findings are binding on appeal if supported by substantial evidence. When a party challenges a district court’s ruling for lack of substantial evidence, we view the evidence in the light most favorable to the judgment. When a reasonable mind would accept the evidence as adequate to reach a conclusion, the evidence is substantial. Evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding. However, neither the district court’s conclusions of law nor its application of its legal conclusions is binding on appeal. The burden of proving exempt status is on the employer.

(Citations omitted.)

IV. Are the Peace Officers Entitled to be Compensated for Their Drive Time?

Drive time is normally non-com-pensable. Raper, 688 N.W.2d at 45. The regulations applicable to peace officers provide:

A police officer, who has completed his or her tour of duty and who is given a patrol car to drive home and use on personal business, is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls. Of course, the time spent in responding to such calls is compensable.

29 C.F.R. § 553.221(f) (1991).

The two exceptions to the general rule that drive time is non-compensable are when drive time is an integral and indispensable part of the employment, or when there is a custom or practice between the employer and employee to compensate the employee for his or her drive time. Raper, 688 N.W.2d at 45.

A. Was the peace officers’ drive time an integral or indispensable part of their employment?

The district court found the peace officers are not entitled to compensation for their drive time. It concluded even though the peace officers drive state-owned vehicles that contain police equipment, the drive to and from home is still just a commute under the FLSA. The peace officers argue when they are driving their vehicles, they are watching for law violators, assisting the public, removing debris from the highway, and remaining in contact with other law enforcement officers.

Several federal courts have addressed this issue. In Aiken v. City of Memphis, plaintiffs sought compensation for the time spent commuting to work in their vehicles. 190 F.3d 753, 759 (6th Cir.1999). Similar to the case at hand, the plaintiffs in Aiken argued the city should compensate the police officers for their drive time because they must respond to emergencies they observe or receive notification of by dispatch while driving to work. Id. The court determined “monitoring a police radio does not convert commute time into compensa-ble work” and “the amount of work involved in monitoring a police radio during a commute is simply de minimis.” Id.

Similarly, in Hellmers v. Town of Vestal, a police officer sought compensation, among other things, for his commute time. 969 F.Supp. 837, 843 (N.D.N.Y.1997). The court noted police officers are not entitled to FLSA compensation for commuting time spent in marked police cars. Id. The court noted, however, the town would likely be required to compensate the officer for any time he was required to respond to a police emergency or other police activity not incidental to his commute to work. Id. at 843 n. 2.

The stipulated record in this case notes incidents when a peace officer would stop on the officer’s commute to perform law enforcement duties. As certified peace officers, these officers may take any enforcement action permitted by any sworn officer. Nevertheless, substantial evidence supports the district court’s, conclusion that any law enforcement duties performed on the commute did not change the commute into an integral or indispensable part of their employment. The record indicates two of the six peace officers did not include their drive time in their hours worked for payroll purposes. Further, the six officers rarely performed any law enforcement duties outside of enforcing the hunting and fishing laws. Most of the time, they left the enforcement of the laws not dealing with hunting and fishing violations to other law enforcement officers. A reasonable mind would find this evidence adequate to reach the conclusion these officers’ drive time was no more than a non-compensable commute under the FLSA.

B. Was there a custom or practice between the State and peace officers to compensate the peace officers for their drive time?

The district court did not rule on whether there was a custom or practice to compensate the peace officers for their drive time in its original findings of fact, conclusions of law, and order. The peace officers filed a motion to enlarge or amend the district court’s ruling under Iowa Rule of Civil Procedure 1.904(2), asking the district court to address this issue. The district court summarily denied the peace officers’ motion. We, therefore, must assume the district court found against the peace officers on this issue.

In Rwper, the plaintiffs raised many of the same issues involved in the present case. We determined drive time is compensable when there is a custom or practice between the employer and employee to compensate the employee for drive time. 688 N.W.2d at 45. In Raper, we reversed the district court by deciding there was no substantial evidence to support the court’s finding there was not a custom to compensate the peace officers for their drive time. We concluded the evidence established a custom to compensate the peace officers for their drive time. In the present case, however, there is substantial evidence to support the district court’s conclusion the State did not have a custom or practice to compensate the peace officers for their drive time. Only four of the six peace officers who brought this action considered their drive time compensable. The inconsistency in tracking work time by the peace officers supports the district court’s decision the State did not have a custom or practice to compensate the peace officers for their drive time.

V. Did the State Adopt a 207(k) Workweek?

Normally, an employer must pay overtime to an employee for work in excess of forty hours per week. 29 U.S.C. § 207(a). However, a special overtime provision for law enforcement employees exists if a public employer adopts a work period consisting of at least seven days and up to twenty-eight days, the employer is not required to pay overtime compensation on a forty-hour work week. 29 U.S.C. § 207(k). The regulations define a work period as “any established and regularly recurring period of work which, under the terms of the Act and legislative history, cannot be less than seven consecutive days or more than twenty-eight consecutive days.” 29C.F.R. § 553.224. A 207(k) work period “need not coincide with the duty cycle or pay period or with a particular day of the week or hour of the day.” Id. Overtime compensation is not due until such time as the employee has worked more than 171 hours during the twenty-eight-day work period if an employer adopts a twenty-eight-day work period. 29 C.F.R. § 553.230(b).

The burden to prove the existence of the section 207(k) work period is with the State. Barefield v. Vill. of Winnetka, 81 F.3d 704, 710 (7th Cir.1996). An employer may establish a work period by a public declaration. Spradling v. City of Tulsa, 95 F.3d 1492, 1505 (10th Cir.1996). However, as long as the employer can demonstrate it factually established a 207(k) work period, a public declaration is not necessary, even if it did not have a 207(k) work period in mind when it adopted its scheduling. Barefield, 81 F.3d at 710.

The stipulation filed by the parties confirms the officers subordinate to the peace officers are scheduled based on a twenty-eight-day, 171-hour work period for purposes of the FLSA. The time sheets of the peace officers show the peace officers kept track of work time in the same manner as their subordinate officers. This method of recordkeeping supports these peace officers had a twenty-eight-day, 171-hour work period under the FLSA. Substantial evidence supports the conclusion the State factually established a 207(k) work period, without a public declaration, even if it did not have a 207(k) work period in mind when it adopted its scheduling.

VI. Is the State Required to Reduce Plaintiffs’ Overtime Claim for Hours off Under its Work Schedule Adjustment Policy?

The FLSA permits public employers to compensate employees for overtime hours by granting them compensatory time at the rate of one and one-half hours for each hour earned. 29 U.S.C. § 207(o)(l). This section provides in relevant part:

(o) Compensatory time
(1) Employees of a public agency which is a State, a political subdivision of a State, or an interstate governmental agency may receive, in accordance with this subsection and in lieu of overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required by this section.
(2) A public agency may provide compensatory time under paragraph (1) only—
(A) pursuant to—
(i) applicable provisions of a collective bargaining agreement, memorandum of understanding, or any other agreement between the public agency and representatives of such employees; or
(ii) in the case of employees not covered by subclause (i), an agreement or understanding arrived at between the employer and employee before the performance of the work....

Id.

The district court found there was an agreement between the peace officers and the State reached prior to the performance of the work to compensate the peace officers with hour-to-hour compensatory time off for hours worked in excess of eight hours per day or forty hours per week at straight time. The district court further concluded this agreement substantially complied with the provisions of § 207(o) and ordered the State to recompute the peace officers’ compensatory time as if their agreement required the State to compute compensatory time at time and one-half. The district court also ordered the State to immediately cash out any hours of compensatory time accrued, but not taken, that exceeded 480 hours. See 29 U.S.C. § 207(o)(3)(A) (providing employee engaged in public safety activity may not accrue more than 480 hours of compensatory time).

While we agree the district court’s finding of fact is supported by substantial evidence, we disagree on the districts court’s application of § 207(o) to its findings of fact. Section 207(o) allows a public employer to compensate an employee for overtime work with compensatory time rather than pay overtime pay as long as the following conditions are met: (1) compensatory time must be at the premium rate of not less than one and one-half hours per hour of overtime work; and (2) it must be pursuant to an agreement reached prior to the performance of the work. Moreau v. Klevenhagen, 508 U.S. 22, 26, 113 S.Ct. 1905, 1907, 123 L.Ed.2d 584, 592 (1993). The agreement between the State and the peace officers did not meet the condition that compensatory time must be at the premium rate of not less than one and one-half hours per hour of overtime work. The State’s practice under this agreement was no more than paying the officers straight time for their overtime hours in the form of time off work in lieu of cash. This practice violated the overtime provisions of the FLSA.

Whether in the guise of construction or otherwise, it is not within our province, function, duty, or power to alter, revise, modify, extend, rewrite, or remake an agreement by construction, or to make a new, or different, agreement for the parties. Smith v. Stowell, 256 Iowa 165, 171-72, 125 N.W.2d 795, 799 (1964). Similarly, we may not alter an agreement for the benefit of one party to the detriment of the other, or make a new agreement at the insistence of one of the parties by a process of interpretation, and relieve one of the parties from the terms of the agreement because of equitable considerations. Id. at 172, 125 NW.2d at 799. We, therefore, must remand the case to the district court to determine the peace officers’ damages consistent with this decision.

VII. Did the State’s Policy of Requiring the Peace Officers to Take Leave for Absences Less Than a Day Violate the FLSA’s Salary-Basis Test?

The State reduces a peace officers’ pay for partial day absences if vacation or sick leave is not available. In Raper, we decided the rules adopted by the department of personnel requiring these peace officers to take leave for absences of less than a day in connection with sick leave and personal leave conform to the principles of public accountability under the Secretary’s regulation found at 29 C.F.R. § 541.5d(a) (1993). Raper, 688 N.W.2d at 48. We, therefore, agree with the district court that the practice of requiring these peace officers to take leave for absences of less than a day in connection with sick leave and personal leave do not violate the FLSA’s salary-basis test.

VIII. Are the Peace Officers Entitled to Interest on Their Damages From the Date of Filing their Action?

The district court entered its order awarding damages to the peace officers under the FLSA. In the same order, the district court did not award the peace officers any damages under Iowa Code chapter 91A, Iowa’s Wage Payment Collection Law.

The peace officers argue they are entitled to prejudgment interest under chapter 91A in accordance with Iowa Code section 535.3. We cannot award prejudgment interest provided for under section 535.3, because the district court did not award any damages under chapter 91A. In the district court, the peace officers did not contest the district court’s failure to award damages under chapter 91A by filing a postjudgment motion. Because the peace officers failed to present this issue to the district court, they are precluded from raising the issue on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998).

IX.Is the Peace Officers’ Meal Time Compensable?

Meal time is compensable, if the employee spends his or her time predominantly for the benefit of the employer. Reimer v. Champion Healthcare Corp., 258 F.3d 720, 725 (8th Cir.2001).

Even if we would decide the case differently than the district court, the ultimate question is whether the evidence supports the findings made by the district court. Raper, 688 N.W.2d. at 51. Substantial evidence supports the district court’s conclusion the peace officers’ mealtime was predominantly for the benefit of the State. The State required the peace officers to stay in uniform, be available by cell phone, and assist the public if called upon to do so. Additionally, they are not allowed to conduct certain personal business, such as shopping, during their meal time. The stipulated record also revealed the peace officers would eat sack lunches while on stake-out, usually discuss law enforcement issues with other officers during meal time, and at least once during every meal break, the public interrupted the officers’ meal time requiring the officer to answer a question or respond to a situation. A reasonable mind would accept this evidence as adequate to conclude these peace officers spend their meal time predominantly for the benefit of the State. See Oakes v. Pennsylvania, 871 F.Supp. 797, 800 (M.D.Pa.1995) (holding evidence that meal periods were interrupted to assist citizens created a genuine issue of material fact as to whether meal time was compensable).

X. Did the Filing of the Action in Federal Court Toll the Statute of Limitations?

In Raper, we determined the federal doctrine of equitable tolling is applicable to a case dismissed for lack of subject matter jurisdiction under the Eleventh Amendment. Raper, 688 N.W.2d at 53. We also determined the State waived its sovereign immunity to be sued in state court for FLSA violations. Id. at 54. The procedural facts and circumstances of Raper are indistinguishable from the procedural history in the present case. Therefore, the district court was correct when it concluded the federal doctrine of equitable tolling is applicable to this action.

XI. Disposition.

We affirm the judgment of the district court in all respects except for its judgment on compensatory time. We, therefore, remand the case to the district court to redetermine the damages, if any, of the peace officers consistent with this decision.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.

      . All references to the Code of Federal Regulations are to the 1991 Code, unless otherwise noted.