author: ROEHR, Circuit Judge. PORTRA, Circuit Judge

text:
    2008 SD 42
    Edith G. HARMON and Joseph Harmon, Plaintiffs and Appellants, v. Anita M. WASHBURN, Defendant and Appellee.
    No. 24551.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2008.
    Decided June 4, 2008.

      Dylan A. Wilde, Thomas E. Brady of Brady Pluimer, PC, Spearfish, SD, Courtney R. Clayborne of Clayborne, Loos, Strommen & Sabers, LLP, Rapid City, SD, for plaintiffs and appellants.
    Robert B. Anderson of May, Adam, Gerdes & Thompson, LLP, Pierre, SD, for defendant and appellee.
   ROEHR, Circuit Judge.

[¶ 1.] Edith G. Harmon (Edith) and Joseph Harmon (Joseph) (collectively Har-mons) brought a negligence action for personal injuries against Anita M. Washburn (Washburn). The trial court denied Har-mons’ motion for judgment as a matter of law on the issue of Washburn’s negligence and on the issue of Edith’s contributory negligence. The jury returned a general verdict denying Harmons’ claim. The trial court then denied Harmons’ renewed motion for judgment as a matter of law and, alternatively, for a new trial. Har-mons appeal the denial of their motions. We reverse and remand.

FACTS

[¶ 2.] On December 23, 2001, Wash-burn was driving the lead vehicle in a caravan of approximately ten vehicles. The caravan traveled south on Highway 34 at approximately ten miles per hour, as it approached a bridge over the Cheyenne River. A line of horseback riders was off to the left of the highway, traveling south, and parallel to the highway. The caravan was traveling in support of the horseback riders. The vehicles in the caravan were separated from each other by a distance of approximately one vehicle length.

[¶ 3.] Edith and her husband, Joseph, were driving separate vehicles south on Highway 34. Joseph was following Edith. Edith saw the caravan from a distance and slowed as she approached it. She noticed the horseback riders to the left of the highway. Edith followed the caravan for a time, then started to pass just before coming to the bridge. Prior to passing, Edith checked for oncoming traffic, checked her mirrors, and used her turn signal to signal her pass. Edith’s vehicle was equipped with daytime running lights. The evidence is disputed as to whether or not the drivers in the caravan had activated their emergency flashers. Edith drove thirty to thirty-five miles per hour as she passed the caravan. She was about to overtake the Washburn vehicle as it was nearing the south end of the bridge.

[¶ 4.] As she neared the south end of the bridge, Washburn wanted to turn off the highway to wait for and meet the horseback riders. Washburn considered turning right off the highway, but decided to turn left onto an approach. The approach was lower than the level of the highway and was not visible from a distance. The vehicles driven by Washburn and Edith collided as Washburn was making the left turn. The evidence is disputed as to whether or not Washburn signaled her left turn. The entire incident took place in a legal passing zone with a sixty-five mile per hour speed limit. Visibility was good and there was no oncoming traffic.

[¶ 5.] After the accident, Joseph transported Edith to an emergency room at a Pierre hospital, where she was examined and had glass removed from an abrasion on her arm. Thereafter, Edith was treated for other alleged injuries.

[¶ 6.] Harmons filed a negligence action for personal injuries against Wash-burn. The action was tried to a jury over two days. Washburn denied her negligence, asserted Edith’s contributory negligence, and contested the nature and extent of Harmons’ injuries. After all the evidence had been presented, Harmons moved for judgment as a matter of law on the issue of Washburn’s negligence and on the issue of Edith’s contributory negligence. The trial court denied the motion. The jury returned a general verdict for Washburn. Harmons then renewed their motion for judgment as a matter of law and, alternatively, for a new trial. The trial court also denied this motion. Har-mons appeal.

ISSUES

[¶ 7.] Harmons raise the following issues on appeal:

Whether the trial court abused its discretion when it denied Harmons’ motion for judgment as a matter of law.
Whether the trial court abused its discretion when it denied Harmons’ renewed motion for judgment as a matter of law and, alternatively, for a new trial.

STANDARD OF REVIEW

[¶ 8.] A trial court’s ruling on a motion for directed verdict is reviewed under the abuse of discretion standard. Christenson v. Bergeson, 2004 SD 113, ¶ 10, 688 N.W.2d 421, 425 (citing Gilkyson v. Wheelchair Express Inc., 1998 SD 45, ¶ 7, 579 N.W.2d 1, 3 (additional citations omitted)). “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.’ ” Id. (quoting Bridge v. Karl’s Inc., 538 N.W.2d 521, 523 (S.D.1995) (citations omitted)). This Court’s task on appeal, “is to review the record and ascertain whether there is any substantial evidence to allow reasonable minds to differ.” Id. ¶ 11 (citations omitted). “If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate.” Id. ¶ 22 (citation omitted).

[¶ 9.] Likewise, the trial court’s ruling on a motion for judgment notwithstanding the verdict is reviewed under the abuse of discretion standard. Id. ¶ 12 (citing Welch v. Haase, 2003 SD 141, ¶ 19, 672

N.W.2d 689, 696 (citation omitted)). The testimony and evidence are reviewed “in a light most favorable to the verdict or to the nonmoving party.” Id. (quoting 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))). “[Without weighing the evidence [this Court] must decide if there is evidence which would have supported or did support a verdict.” Id. (quoting Sabag, 374 N.W.2d at 355 (citing Corey v. Kocer, 86 S.D. 221, 226-27, 193 N.W.2d 589, 593 (1972))).

[¶ 10.] In 2006 SDCL 15-6-50(a) and (b) were amended. The substantial changes made by this amendment include referring to a motion for directed verdict as a motion for judgment as a matter of law and denominating a motion for judgment notwithstanding the verdict as a renewed motion for judgment as a matter of law. These amendments, however, do not change our standard of review — which remains abuse of discretion. The abuse of discretion standard is also utilized “when reviewing a trial court’s denial of a motion for a new trial.” Christenson, 2004 SD 113, ¶ 13, 688 N.W.2d at 426 (citing 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))).

DECISION

ISSUE ONE

[¶ 11.] Whether the trial court abused its discretion when it denied Harmons’ motion for judgment as a matter of law.

[¶ 12.] At the close of the evidence Harmons moved for a judgment as a matter of law on the issue of Washburn’s negligence and on the issue of Edith’s contributory negligence. SDCL 15-6-50(a)(1) provides:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

“Only in exceptional cases may the verdict be directed in favor of the party having the burden of proof.” Christenson, 2004 SD 113, ¶ 24, 688 N.W.2d at 428.

“[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. (quoting Langdon v. Reuppel, 81 S.D. 289, 291, 134 N.W.2d 293, 294 (1965)). 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).

Id.

[¶ 13.] Harmons argue that Washburn’s driving that day violated at least five different South Dakota statutes and that each such violation “constitutes negligence per se.” Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7, 9 (S.D.1974). Concerning the first alleged violation, SDCL 32-26-18.1 provides in pertinent part:

No person may turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required by §§ 32-26-17 and 32-26-18. A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning....

The evidence on this point consisted of the testimony of Harmons, Washburn, and Washburn’s daughter, Amanda Washburn. Both Harmons testified that Washburn did not use her turn signal. Viewing the evidence in the light most favorable to Wash-burn, Washburn’s daughter testified that her mother signaled the left turn fifteen feet before turning; Washburn testified, in effect, that she signaled the turn at most forty-four feet prior to the turn.

[¶ 14.] Based on the testimony it is undisputed that Washburn violated the statute and was negligent per se. Therefore, we do not address Harmons’ argument regarding the other five statutes violated. It was error for the trial court not to grant a judgment as a matter of law on the issue of Washburn’s negligence.

[¶ 15.] Harmons also sought a judgment as a matter of law that Edith was not contributorily negligent.

Contributory negligence is a ‘breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.’ (quoting Boomsma v. Dakota, Minnesota, & Eastern Railroad Corp., 2002 SD 106, ¶ 34, 651 N.W.2d 238, 245-46 (additional citations omitted)). Where plaintiffs contributory negligence is more than slight compared to defendant’s negligence, plaintiff is barred from recovery. SDCL 20-9-2. As long as there is competent evidence to support the theory of contributory negligence, it is proper for the issue to go to the jury. Id (citing Parker v. Casa Del Rey, 2002 SD 29, ¶5, 641 N.W.2d 112, 115).

Johnson v. Armfield, 2003 SD 134, ¶ 10, 672 N.W.2d 478, 481.

[¶ 16.] Edith looked in her mirror and signaled before passing. Her car was equipped with daytime running lights. The day was clear. There was no oncoming traffic. She was in a legal passing zone and passed at thirty to thirty-five miles per hour in a sixty-five mile per hour zone. When Washburn made the left turn, Edith was unable to avoid the accident.

[¶ 17.] Washburn argues that Edith ought not to have passed on a bridge because the guardrails on the left would prevent her from leaving the highway in that direction to avoid an accident. This is tantamount to arguing that no one should ever pass on this bridge because of the guardrail on the left, which completely ignores the fact that it is a legal passing zone. Furthermore, “a motorist has the right to assume that other drivers will obey the rules of the road.” Treib, 513 N.W.2d at 913 (citing Nelson v. McClard, 357 N.W.2d 517 (S.D.1984)).

[¶ 18.] Washburn also argues that Edith was driving too fast. There is no evidence to support this assertion. All the evidence is that Edith was driving thirty to thirty-five miles per hour in a sixty-five mile per hour zone to pass Washburn’s vehicle, which was traveling ten miles per hour.

[¶ 19.] Under these circumstances, passing a caravan, as opposed to one vehicle, is not evidence of contributory negligence. There was no oncoming traffic. Edith successfully passed all the cars in the caravan except the lead vehicle. Whether she was passing a fifty-car caravan or just one vehicle, the accident arose from the manner in which two vehicles were driven — Washburn’s vehicle and Edith’s vehicle.

[¶ 20.] Washburn implies that the caravan and the horseback riders to the left, and by then to the rear, should have caused Edith to reasonably anticipate Washburn’s turn. Washburn offers no further explanation as to why Edith should have anticipated the turn, much less one without a proper signal. Again, Edith had the right to assume Washburn would follow the rules of the road. Id

[¶ 21.] There was no legally sufficient evidentiary basis for a reasonable jury to find Edith contributorily negligent. The trial court erred by not granting the judgment as a matter of law on this issue.

ISSUE TWO

[¶ 22.] Whether the trial court abused its discretion when it denied Harmons’ renewed motion for judgment as a matter of law and, alternatively, for a new trial.

[¶ 23.] After the jury returned its general verdict in favor of Washburn, Harmons renewed their motion for judgment as a matter of law. SDCL 15 — 6— 50(b) provides in pertinent part:

If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than ten days after notice of entry of judgment — and may alternatively request a new trial....

[¶ 24.] Our standard of review is abuse of discretion. Christenson, 2004 SD 113, ¶ 12, 688 N.W.2d at 425. In reviewing the renewed motion for judgment as a matter of law, we, again, “review the testimony and evidence in a light most favorable to the verdict or to the nonmoving party.” Id. We must determine, without weighing the evidence, whether there is evidence which would or did support the jury’s verdict. Id.

[¶ 25.] As previously discussed, Washburn was negligent as a matter of law and Edith was not contributorily negligent as a matter of law. However, we must also review the testimony and evidence regarding Harmons’ damages. The jury’s general verdict in favor of Wash-burn would be supported by the evidence if the jury was able to find that Harmons had not incurred damages as a proximate result of the accident.

[¶26.] Edith’s primary claim of damages was an injury to her lower back. Considerable evidence was presented to the jury regarding the nature and extent of the injury and the need for treatment. Washburn strongly disputed this evidence. However, Edith’s damage claim also included the cost of an examination and the removal of glass from an abrasion on her arm at a Pierre hospital emergency room immediately after the accident. This evidence is undisputed. Consequently, Har-mons suffered damages as a proximate result of the accident.

[¶ 27.] The evidence does not support the jury’s verdict. The trial court abused its discretion in not granting the renewed motion for judgment as a matter of law on liability and granting a new trial on damages.

[¶ 28.] We reverse and remand.

[¶ 29.] KONENKAMPand MEIERHENRY, Justices, concur.

[¶ 30.] GILBERTSON, Chief Justice, and PORTRA, Circuit Judge, dissent.

[¶ 31.] ROEHR, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 32.] PORTRA, Circuit Judge for ZINTER, Justice, disqualified.

PORTRA, Circuit Judge

(dissenting).

[¶ 33.] I respectfully dissent. The majority substitutes its judgment for that of the trial court and the jury, and in the process, undermines the validity of the jury system.

[¶ 34.] The majority acknowledges that the proper standard of review is whether the trial court abused its discretion. This Court previously explained that standard as follows:

Our standard of review of the circuit court’s denial of a directed verdict and of the jury’s determination in favor of [the defendant] is well established. We must examine the evidence in the light most favorable to the non-moving party and give him the benefit of all reasonable inferences. Robinson v. Mudlin, 273 N.W.2d 753, 755 (S.D.1979). 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. Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371, 374 (1967).
In such a context, it becomes our task to review the record and determine whether there is any substantial evidence to allow reasonable minds to differ. Haggar v. Olfert, 387 N.W.2d 45 (S.D.1986). This Court does not weigh the evidence and substitute its judgment for that of the jury. Robinson, 273 N.W.2d at 755; Berg v. Sukup Mfg., 355 N.W.2d 833, 835 (S.D.1984). The decision of the jury is likely to be upheld as questions of negligence ... are for the determination of the jury ‘in all except the rarest of instances.’ Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983).
Whether the jury’s verdict should result in a new trial being granted is left to the sound discretion of the trial court. We will not overturn that ruling without a clear showing of an abuse of discretion. Darbt v. Berghorst, 484 N.W.2d 891, 894 (S.D.1992) [95 SDO 579]. An abuse of discretion occurs only if no “ ‘judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’ ” Id. (quoting Jensen v. Weyrens, 474 N.W.2d 261, 263 (S.D.1991)).

Bridge v. Karl’s, Inc., 538 N.W.2d 521, 523 (S.D.1995). This standard of review is the most deferential applied by this Court. Yet according to the majority, the experienced trial court and the twelve men and women of the jury selected by the parties apparently came to a conclusion, by unanimous decision, that no reasonable person could come to.

[¶ 35.] It is without question that Washburn was negligent. However, that is not the end of our inquiry. If the jury found that Harmon was eontributorily negligent, more than slight, then she is precluded from recovery. Although the violation of a statute may be negligence per se, one does not have to violate a statute in order to be negligent.

Negligence is the failure to use reasonable care. It is the doing of something which a reasonable person would not do, or the failure to do something which a reasonable person would do, under facts similar to those shown by the evidence. The law does not say how a reasonable person would act under facts similar to those shown by evidence. That is for you to decide.

Jury Instruction No. 5; SDPJI 10-01. This Court has previously endorsed the giving of this instruction. Kappenman v. Strok, 2005 SD 96, ¶ 15, 704 N.W.2d 36, 41.

[¶ 36.] When the evidence produced at trial is examined, there are sufficient facts to support the jury’s verdict. Harmon testified that she saw a line of approximately ten cars pulling onto the highway in front of her and some people riding horses moving in the same direction as the vehicles. She attempted to pass this line of cars as she entered onto the Cheyenne River Bridge. She acknowledged that she was not certain about what the vehicles were going to do, and she was aware from her experience as a rancher that sometimes vehicles turn off the highway onto approaches that are difficult to see. Harmon also admitted that she did not do anything such as honking her horn or flashing her lights to warn the line of vehicles that she was passing.

[¶ 37.] The majority also asserts that it is undisputed that Harmon was traveling between thirty to thirty-five miles per hour as she passed the caravan. However, the nature of the accident tends to bring that into question. Harmon’s vehicle hit Wash-burn’s vehicle with sufficient speed that Harmon’s vehicle flipped over Washburn’s vehicle. The jury was instructed that they “have a right to consider the common knowledge possessed by all of you, together with the ordinary experiences and observations in your daily affairs of life.” Jury Instruction No. 28; SDPJI 1-04; Gross v. Connecticut Mutual Life Ins. Co., 361 N.W.2d 259, 269-70 (S.D.1985).

[¶ 38.] It seems highly unlikely that a vehicle traveling thirty-five miles per hour and striking another vehicle in a t-bone style accident would flip over the vehicle that was struck in the manner testified to by Harmon. It is quite possible that the jury rejected Harmon’s testimony as to speed because the physical evidence of the accident was inconsistent with her version of the events, even without contradictory testimony.

[¶ 39.] It is also possible that the jury did not believe Harmon’s testimony regarding damages. Harmon denied having similar back problems prior to the accident; however, her testimony was contradicted by her medical records and the testimony of Dr. Nelson. The jury was instructed, “If you believe that any witness testifying in this case has knowingly sworn falsely to any material matter in this case, then you may reject all of the testimony of the witness.” Jury Instruction No. 26; SDPJI 2-04; State v. Rosales, 302 N.W.2d 804, 806 (S.D.1981). If the jury found that Harmon was lying and rejected all of her testimony, then it is not surprising that they found for Washburn. It is impossible to determine whether that is what happened in this case, but that is precisely the problem with attempting to invade the jury room.

[¶ 40.] It is prudent to compare the facts of this case with those in Bridge. In Bridge, the defendant admitted liability for any of the plaintiffs injuries proximately caused by an automobile accident. Bridge, 538 N.W.2d at 523. The jury returned a verdict for the defendant, and the plaintiff moved for judgment notwithstanding the verdict or a new trial. Id. This Court affirmed. Id. at 526. In doing so, the Court wrote:

Factually this case is a close call. But the rules for new trials and judgments notwithstanding the verdict clearly apply to resolve close calls. See Olson v. Judd, 534 N.W.2d 850, 852 (S.D.1995). If this jury’s verdict can be explained with reference to the evidence, rather than by juror passion, prejudice or mistake of law, then this verdict must be affirmed. Miller [v. Hernandez], 520 N.W.2d [266] at 272 [(S.D.1994)]. Viewing the evidence in a light most favorable to the verdict, we cannot say the jury’s award was a result of passion or prejudice or that the jury was palpably mistaken on the rules of law by which damages in this case are to be measured.

Id. at 525.

[¶ 41.] This Court should follow that precedent in this case. As in Bridge, there has been no finding of passion, prejudice, or mistake of law. In fact, Harmon does not even argue that the jury was instructed improperly on the law. Simply put, Harmon does not agree with the jury’s decision. However, it does not matter if she agrees with the jury’s decision, nor even if we agree with the jury’s decision. It only matters whether the decision can be supported by a review of the evidence most favorable to the verdict, and as discussed above, it can.

[¶ 42.] This Court’s previous decision in Treib v. Kern, 513 N.W.2d 908 (1994) is also particularly instructive. That case also involved a car accident and the accompanying issues of negligence and contributory negligence, and that jury also found for the defendant. Id. at 910. The plaintiff appealed the trial court’s denial of his motions for directed verdict and judgment notwithstanding the verdict, and this Court affirmed. Id.

[¶ 43.] As in this case, the defendant in Treib violated a statute and was negligent per se. Id. at 913. Additionally, the plaintiff was not found to have violated a particular statute. However, the trial court found, and this Court agreed, that the plaintiff should have realized that he was within the zone of danger and either honked to alert the defendant of his presence or taken evasive action. Id. This Court went on to say:

It is for the jury to decide whether [plaintiff] was guilty of contributory negligence for failure to use reasonable care in discovering the danger and avoiding a collision. Winburn v. Vander Vorst, 74 S.D. 531, 55 N.W.2d 609 (1952). A determination supported by evidence will not be disturbed even though there are facts which would warrant a different conclusion. Rumbolz v. Wipf, 82 S.D. 327, 145 N.W.2d 520 (1966).
After viewing the evidence in a light most favorable to [defendant] and giving him the benefit of all reasonable inferences, we conclude that reasonable minds could differ as to [plaintiffs] contributory negligence. “[I]t is not the function of this court on review to weigh conflicting evidence or to pass upon credibility of witnesses; that task lies within the province of the jury.” Sharkey v. Washington Nat. Ins. Co., 373 N.W.2d 421, 427 (S.D.1985) (citing Lukens v. Zavadil, 281 N.W.2d 78 (S.D.1979); Kamp Dakota, Inc. v. Salem Lumber Co., Inc., 89 S.D. 696, 237 N.W.2d 180 (1975)). Therefore, the trial court did not abuse its discretion in denying the motions for directed verdict and judgment notwithstanding the verdict.

Id. (footnote omitted).

[¶ 44.] Just as in Treib, Harmon failed to warn the vehicles that she was passing by honking her horn and/or flashing her lights. By attempting to pass ten ears on a bridge she also placed herself in a situation where she would not be able to take any evasive action in the event of an emergency, even though it was apparent that the ten cars were not traveling in a normal fashion and extra caution may be required. It was up to the jury to decide if Harmon’s actions constituted negligence under the unique circumstances of this case, and if so, whether her negligence was more than slight in comparison to that of Washburn.

[¶ 45.] In summary, there was sufficient evidence presented to create a question for the jury. It answered in favor of Washburn. We should not interfere with its verdict by directing a verdict for Harmon.

[¶ 46.] GILBERTSON, Chief Justice, joins this dissent.

      . Washburn counterclaimed against Edith, alleging negligence and personal injuries. The jury returned a general verdict denying Wash-burn’s claim. Washburn has not appealed that verdict.

      . Washburn testified that she was driving ten miles per hour and signaled two or three seconds prior to the turn. The jury was provided with a mathematical formula to make the computation for distance.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2008 SD 41
    STATE of South Dakota, Plaintiff and Appellant, v. Wade Dustin HAYEN, Defendant and Appellee.
    No. 24549.
    Supreme Court of South Dakota.
    Argued on March 27, 2008.
    Decided June 04, 2008.

      Lawrence E. Long, Attorney General, Andrew Kneeht, Craig M. Eichstadt, Assistant Attorneys General, Pierre, SD, for plaintiff and appellant.
    Ronald A. Parsons, Jr., Brendan V. Johnson, Kimberly J. Lanham of Johnson, Heidepriem, Janklow, Abdallah & Johnson, LLP, Sioux Falls, SD, for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] .The State of South Dakota appeals from a circuit court order suppressing evidence obtained from a traffic stop on a main thoroughfare in Sioux Falls, Minnehaha County, South Dakota. A Sioux Falls police officer, Officer Flogstad, stopped Wade Hayen because he was unable to see the expiration date on the bottom of the temporary thirty-day dealer’s license. The temporary license was properly positioned and displayed on the rear driver’s side window of Hayen’s new pickup truck; however, a box in the back of the pickup obstructed the bottom of the license preventing the officer from seeing the expiration date from his position in the driver’s seat of the patrol car as he followed Hayen’s pickup.

[¶ 2.] After the stop, the officer approached Hayen’s vehicle on the driver’s side. He walked by the license without checking the expiration date. Had the officer looked, he could easily have read the expiration date as he walked from his vehicle to the driver’s side window. Nothing blocked his view, including the box that had previously prevented him from reading the date while following Hayen in his patrol car. Instead, the officer went directly to the driver-side window and asked for Hayen’s driver’s license and proof of insurance. Hayen provided his driver’s license but had difficulty locating his proof of insurance. Only after this initial contact, did the officer step back to look at the expiration date on the temporary license and determine it to be valid.

[¶ 3.] After ascertaining the validity of the temporary license, the officer continued to detain Hayen while he returned to his patrol vehicle to run a warrant and a driver’s license check. The warrant check revealed an outstanding warrant for Hay-en’s arrest. The officer then arrested Hayen and proceeded to search his person and vehicle. He found methamphetamine residue and drug paraphernalia in Hayen’s coat pocket. As a result, the State charged Hayen with possession of a controlled drug or substance and possession of drug paraphernalia.

[¶ 4.] Hayen moved to suppress the evidence gained from the search as a violation of his rights against unreasonable search and seizure guaranteed under the United States and South Dakota Constitutions. U.S. Const, amend. IV; SD Const, art. VI, § 11. See State v. Meyer, 1998 SD 122, ¶ 18, 587 N.W.2d 719, 723 (noting that South Dakota Constitution and the United States Constitution provide similar protections against unreasonable searches and seizures). The circuit court granted Hay-en’s motion to suppress because “at the time that Officer Flogstad asked for [Hay-en’s] license and proof of insurance, there was no objective evidence that a traffic violation had occurred or was occurring.”

[¶ 5.] The State claims the circuit court erred in suppressing the evidence. “Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo.” State v. Muller, 2005 SD 66, ¶ 12, 698 N.W.2d 285, 288 (citations omitted). The Fourth Amendment to the United States Constitution provides protection against “unreasonable searches and seizure.” The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV. “The Fourth Amendment’s prohibition against unreasonable searches and seizures applies when a vehicle is stopped by law enforcement.” Muller, 2005 SD 66, ¶14, 698 N.W.2d at 288 (citations omitted). We have recognized that the Fourth Amendment permits a brief investigatory stop of a vehicle when “the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘may be afoot.’ ” State v. Kenyon, 2002 SD 111, ¶ 14, 651 N.W.2d 269, 273 (citations omitted). However, prior to stopping a vehicle, the officer is required to have an objective “specific and articulable suspicion” that a violation has occurred or is occurring. State v. Vento, 1999 SD 158, ¶ 8, 604 N.W.2d 468, 470; see also Muller, 2005 SD 66, ¶ 14, 698 N.W.2d at 288 (citations omitted).

[¶ 6.] Hayen does not dispute that the officer had reasonable articulable suspicion to stop his vehicle. Additionally, the State does not dispute that the officer failed to verify the expiration date on the temporary license before asking Hayen for his license and proof of insurance. The issue is whether extending Hayen’s detention beyond verifying the expiration date on the clearly displayed temporary license is a violation of Hayen’s constitutional right against unreasonable search and seizure. The State argues that when an officer effectuates a valid investigatory stop, it is not unreasonable for the officer first to approach the driver to request a driver’s license and proof of insurance before investigating his suspicions.

[¶ 7.] We have said that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” State v. Ballard, 2000 SD 134, ¶11, 617 N.W.2d 837, 841 (emphasis added) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229, 238 (1983) (citations omitted)). We also required that the investigation be “ ‘reasonably related in scope to the circumstances that justified the interference in the first place.’ ” Id. (quoting United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir.1994) (quoting United States v. Cummins, 920 F.2d 498, 502 (8th Cir.1990) (quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)))). We said additionally that after the completion of the traffic investigation “an officer must allow the driver to proceed without further constraint. To detain a driver further an officer must have ‘a reasonable, articulable suspicion that [the] person is involved in criminal activity unrelated to the traffic violation.’ ” Id. ¶ 12, 617 N.W.2d at 841 (internal and external citations omitted). Likewise, the Eighth Circuit Court of Appeals has stated that the Fourth Amendment intrusion “ ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop’ and that the officer should employ the least intrusive means available to dispel the officer’s suspicion in a timely fashion.” United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001) (citation omitted).

[¶ 8.] The officer testified that the sole purpose of stopping Hayen was to ensure the temporary license had not expired. The circuit court found that “[t]he temporary license was visible as Officer Flogstad approached the vehicle and was valid.” The officer testified that he did not look at the date on the license as he walked passed it, even though the license was visible without having to move any objects in the back of the pickup. Only after requesting Hayen’s driver’s license and proof of insurance, did he read the expiration date clearly visible on the license. The officer gave no explanation why he did not look at the license on the way to the driver’s door, nor did he offer any other reason to extend his investigation beyond verifying the date on the temporary license. The officer conceded at the hearing that Hayen’s temporary license was valid, visible and properly affixed to Hay-en’s vehicle. The fact that a box obstructed the officer’s view from a certain angle is not a violation of any South Dakota traffic law. The officer offered no reason to detain Hayen except to verify the expiration date.

[¶ 9.] Whether an articulable purpose exists for continuing an investigative detention depends entirely on the specific facts of the case. The State cites several federal cases for the proposition that an officer is entitled to extend an investigative detention despite clearly objective facts dispelling the purpose of the stop. The cases cited by the State are easily distinguishable from the current facts and are inapposite. In those cases, a traffic violation had occurred, was occurring or the officer had objective reasonable articulable suspicion that a violation had occurred or was occurring that permitted the continued investigative detention. E.g. United States v. Bueno, 443 F.3d 1017, 1024-25 (8th Cir.2006) (stating the court “credit[s] the district court’s finding that the officers could not see the temporary registration” as adding to the reasonableness of the investigative detention, and the officer cited the defendant for the violation); United States v. Dumas, 94 F.3d 286, 290 (7th Cir.1996) (temporary tags were “illegible” and could not be “readily and distinctly seen and read” constituting a violation of the law); United States v. Dexter, 165 F.3d 1120 (7th Cir.1999) (same facts as Dumas, here the court also addressed the officer’s reasonable safety concerns which prevented him from investigating the actual violation prior to talking to the driver); United States v. Tipton, 3 F.3d 1119 (7th Cir.1993) (temporary tags were not affixed properly constituting a violation of Illinois law); United States v. Chavez Loya, 2007 WL 700991 (D.Neb. Feb. 28, 2007) (valid traffic stop with clearly articulated objective reasonable suspicion which had not dissipated).

[¶ 10.] Likewise, the State relies on three of our prior cases: State v. Muller, 2005 SD 66, 698 N.W.2d 285, State v. Kenyon, 2002 SD 111, 651 N.W.2d 269 and State v. Vento, 1999 SD 158, 604 N.W.2d 468. Again, these cases are distinguishable and inapposite. Muller involved an objectively reasonable stop based on the officer’s observation that the license plate’s registration sticker was covered in snow and the dispatcher’s confirmation that the registration had expired. Even though the police dispatcher erroneously informed the officer that the plate had expired, the officer immediately observed the smell of alcohol emanating from the vehicle as well as the defendant’s blood shot eyes. These observations created reasonable suspicion for further detention. Muller, 2005 SD 66, ¶ 25-26, 698 N.W.2d at 292-93. In Kenyon, the detention involved an actual traffic violation for failing to display red taillights as well as objectively reasonable suspicion articulated for the continued detention. 2002 SD 111, 651 N.W.2d 269. In Vento, there was also an objective violation of a traffic law. 1999 SD 158, ¶ 11, 604 N.W.2d at 470.

[¶ 11.] The facts of United States v. McSwain, a Tenth Circuit Court of Appeals case, parallel those of this case. 29 F.3d 558 (10th Cir.1994). In McSwain, a Utah trooper stopped McSwain because tamper-proofing tape inhibited his ability to read the expiration sticker of the vehicle’s temporary license. As the trooper walked up to the vehicle, he observed that the license was valid; nonetheless, the trooper continued to request McSwain’s identification and vehicle registration. McSwain provided the trooper with a Colorado registration in his name but he informed the trooper that he did not have a driver’s license. After running McSwain’s name through a computer check, the trooper learned that McSwain had a suspended license and had been convicted of drug, gun and assault violations. The trooper then requested permission to search the vehicle and McSwain consented. The search turned up a gun, drugs and a set of scales.

[¶ 12.] McSwain moved to suppress the evidence as “the fruit of an unlawful detention.” Id. at 560. The trial court denied the motion; however, the appellate court reversed the order and suppressed the evidence, holding:

Trooper Avery’s reasonable suspicion regarding the validity of Mr. McSwain’s temporary registration sticker was completely dispelled prior to the time he questioned Mr. McSwain and requested documentation. Having no “objectively reasonable articulable suspicion that illegal activity ha[d] occurred or [was] occurring,” Trooper Avery’s actions in questioning Mr. McSwain and requesting his license and registration exceeded the limits of a lawful investigative detention and violated the Fourth Amendment.

Id. at 561-62 (citations omitted). The government in McSwain argued “that not allowing an officer to request a driver’s license and registration in this type of case will require the officer to ‘stop a vehicle, approach the vehicle on foot, observe it, then walk away, get in his police car, drive away and wave, leaving the stopped citizen to wonder what had just occurred.’ ” Id. at 562 (citation omitted). The court responded that “[a]s a matter of courtesy, the officer could explain to drivers in Mr. McSwain’s circumstances the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration.” Id.

[¶ 13.] Here, like in McSwain, the officer’s actions in requesting Hayen’s license and proof of insurance went beyond the limits of a lawful investigative stop. The officer could easily have looked at the license to satisfy his suspicions. Had he done so, it would have been clear that no violation had occurred or was occurring. At that point, his reason for detaining Hayen would have dissipated. He expressed no safety concern, he did not allege any observed violation of law, nor did he proffer any purpose for the continued stop. Without any further articulable suspicion of criminal activity, the extended detention violated Hayen’s federal and state constitutional rights. Although there certainly are situations where an officer is permitted to make contact with the driver prior to investigating the purpose of the investigatory stop, in this situation there were none articulated. Therefore, the officer’s request for Hayen’s driver’s license and proof of insurance constituted an unconstitutional detention and the evidence garnered from the unlawful detention was properly suppressed.

[¶ 14.] Affirmed.

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


author: CADY, Justice.

text:
    GRINNELL COLLEGE and the Cincinnati Insurance Companies, Appellants, v. Ron OSBORN, Appellee.
    No. 06-1012.
    Supreme Court of Iowa.
    June 27, 2008.

      David L. Jenkins of Bradshaw, Fowler, Proctor <& Fairgrave, P.C., Des Moines, for appellants.
    Paul J. McAndrew, Jr. of Paul McAn-drew Law Firm, Coralville, for appellee.
   CADY, Justice.

In this appeal, we review a decision by the district court to enter judgment on an award of benefits by the workers’ compensation commissioner during the pendency of a petition for judicial review and to deny a motion to stay execution or enforcement of the award. On our review, we affirm the decision of the district court.

I. Background Facts and Proceedings.

Following a hearing before a deputy industrial commissioner, the workers’ compensation commissioner on review determined Ron Osborn sustained injuries arising out of and in the course of his employment with Grinnell College. The commissioner entered a decision awarding Osborn weekly benefits based on a permanent total disability. Grinnell College and its insurer filed a petition for judicial review. During the pendency of judicial review, Osborn requested the district court to enter judgment on the workers’ compensation decision. Grinnell College resisted Osborn’s request and contemporaneously filed a motion with the district court to stay enforcement of the commissioner’s decision. The district court entered judgment on the award and denied the motion to stay. The judgment was in the amount of $141,589.50, representing accrued benefits, medical expenses, and interest. Grinnell College appealed from the judgment entry and the denial of the stay.

During the pendency of this appeal, the district court proceeded to determine the merits of the petition for judicial review. It ultimately affirmed the decision of the workers’ compensation commissioner, and Grinnell College separately appealed from that decision. The district court then stayed execution or enforcement of the judgment during the pendency of the appeal after Grinnell College filed a superse-deas bond.

In this appeal, Grinnell College claims the district court erred in converting the workers’ compensation decision into a judgment during the pendency of judicial review and in failing to stay enforcement of the commissioner’s decision. Osborn claims the final judgment subsequently entered on judicial review and the stay entered after the appeal of the judicial-review decision render the issues presented in this appeal moot. Thus, before we consider the merits of the issues raised by Grinnell College, we must decide if they are no longer justiciable.

II. Standard of Review.

We review the district court’s decision to enter judgment on the workers’ compensation award for errors at law. Iowa R.App. P. 6.4. Iowa Code section 17A.19(5) “plainly makes the issuance of [a] stay discretionary.” Teleconnect Co. v. Iowa State Commerce Comm’n, 366 N.W.2d 511, 513 (Iowa 1985). For that reason, review of the district court’s decision whether to stay agency action under section 17A.19(5) is for abuse of discretion. Id.; see also Glowacki v. State Bd. of Med. Exam’rs, 501 N.W.2d 539, 541 (Iowa 1993).

III. Justiciability.

The two intertwined issues raised by Grinnell College in this appeal are whether the district court erred in entering judgment after a petition for judicial review had been filed and whether the district court abused its discretion by refusing to grant a stay of execution or enforcement of the commissioner’s award of benefits during the pendency of the judicial review. Ultimately, these two issues require us to consider the interaction of Iowa Code sections 17A.19(5) and 86.42. Before we address these two sections, however, we must consider the preliminary question of whether the issues presented are justicia-ble.

“One familiar principle of judicial restraint is that courts do not decide cases when the underlying controversy is moot.” Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005); see also, e.g., Lalla v. Gilroy, 369 N.W.2d 431, 434 (Iowa 1985) (“A live dispute must ordinarily exist before a court will engage in an interpretation of the law.”). “ ‘[0]ur test of mootness is whether an opinion would be of force or effect in the underlying controversy.’ ” Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540 (Iowa 1997) (quoting Wengert v. Branstad, 474 N.W.2d 576, 578 (Iowa 1991)). “In other words, will our decision in this case ‘have any practical legal effect upon an existing controversy?’ ” Id. (quoting 5 Am.Jur.2d Appellate Review § 642, at 321 (1995)).

In this case, the district court ultimately affirmed the workers’ compensation commissioner on judicial review and entered a stay of enforcement of the decision during the pendency of the appeal. See Iowa R.App. P. 6.7. Thus, the prior actions of the district court, which are the subject of this appeal, no longer have any direct consequences on the parties. Accordingly, the issues raised by Grinnell College are moot.

Nevertheless, we will consider moot issues on appeal under certain circumstances. State v. Hernandez-Lopez, 639 N.W.2d 226, 235 (Iowa 2002). In determining whether or not we should review a moot action, we consider four factors:

(1) the private or public nature of the issue; (2) the desirability of an authoritative adjudication to guide public officials in their future conduct; (3) the likelihood of the recurrence of the issue; and (4) the likelihood the issue will recur yet evade appellate review.

Id. at 234.

While this appeal is a purely private action, the issues presented currently lack authoritative adjudication. Additionally, the broader question of how the statutory procedure to transform an award of benefits following a decision of the workers’ compensation commissioner into a judgment interacts with the statutory procedure to request a stay during the pen-dency of an action for judicial review of a decision of the workers’ compensation commissioner is substantial and will likely reoccur. Considering the respective time-lines of the appellate and judicial review processes, employers will likely continue to appeal adverse judicial review decisions and post the required supersedeas bond before our appellate courts can decide the separate appeal of a denial of a section 17A.19(5) stay or the grant of a section 86.42 request to enter judgment. Enforcement will be stayed under our rules of appellate procedure, mooting any appeal of a district court’s decision under either section 17A.19(5) or section 86.42 and ensuring the question will continue to evade review. Consequently, the issues presented by this appeal fall neatly under the exception to our mootness doctrine, and we consider them now.

IY. Stay of Judgment During Judicial Review.

Grinnell College asserts the district court erred in entering judgment and in denying its motion to stay the decision of the workers’ compensation commissioner during judicial review. It claims the actions by the district court not only defeated its statutory right to judicial review, but also violated its due process rights under the state and federal constitutions. The basis of the claims by Grinnell College is derived from its argument that it is unfair to be required to pay an award of benefits by the workers’ compensation commissioner before the district court has had an opportunity to review the award on judicial review.

We acknowledge that the execution of a judgment entered in a workers’ compensation proceeding under section 86.42 during the pendency of judicial review can present many subsequent problems for the parties if the district court ultimately reverses the decision of the commissioner. The specific problem identified by Grinnell College in this case is an employer may not be able to recover the payment made on the judgment in the event the employer is successful in reversing or modifying the decision on judicial review. Grinnell College asserts this problem could ultimately undermine the very objective and purpose of judicial review in workers’ compensation proceedings.

We begin our analysis of the issue by considering a fundamental proposition of workers’ compensation law. The Workers’ Compensation Act was enacted nearly a century ago to benefit workers and compensate them for industrial disabilities. Pribyl v. Standard Elec. Co., 246 Iowa 333, 343, 67 N.W.2d 438, 444 (1954). The process sought to establish an administrative tribunal that would provide for the prompt and efficient determination and award of compensation to injured workers. Nash v. Citizens Coal Co., 224 Iowa 1088, 1092, 277 N.W. 728, 730 (1938). Yet, in doing so, our legislature recognized an award of benefits to a worker by such a tribunal was not a personal judgment that would allow a worker to collect the award when not voluntarily paid by the employer. Consequently, a summary method was established under the statute to convert an award by the workers’ compensation commissioner into a district court judgment or decree. See Elk River Coal & Lumber Co. v. Funk, 222 Iowa 1222, 1235, 271 N.W. 204, 211 (1937). This summary method was part of the original act and is now found in Iowa Code section 86.42. See 1913 Iowa Acts ch. 147, § 34.

Section 86.42 requires the district court to enter judgment on any order or decision of the workers’ compensation commissioner as long as, among other conditions not relevant to this case, no timely petition for judicial review has been filed or no stay has been entered pursuant to section 17A.19(5) when a petition for judicial review has been timely filed. Once entered, the judgment “has the same effect and in all proceedings in relation thereto is the same as though rendered in a suit duly heard and determined by the court.” Iowa Code § 86.42 (2005).

We have interpreted section 86.42 to provide “a summary method ... for converting the decision of the commissioner into the form of a judgment or decree by transcribing the proceedings to the district court.” Elk River Coal & Lumber Co., 222 Iowa at 1235, 271 N.W. at 211. The transcription facilitates “collection by legal process of the amount already legally ascertained to be due.” Rethamel v. Havey, 679 N.W.2d 626, 629 (Iowa 2004). Consequently, the court’s role in the process is ministerial and is limited to entering a judgment in conformance with the award. Id. at 628. This statutory scheme reveals that the district court did not err in converting the decision into a judgment in this case. No stay had been entered at the time the request was made, and the relevant conditions to enter the judgment had been satisfied.

While our workers’ compensation statute allows the district court to convert an award of benefits into a judgment, it also provides for judicial review of decisions by the workers’ compensation commissioner. Iowa Code § 86.26. This process is implemented by a separate legislative scheme available for all administrative agency action. Id. (referencing Iowa Code ch. 17A). Under the Iowa Administrative Procedure Act, a process exists for a petitioner to obtain a stay of execution or enforcement of the agency action during the pendency of judicial review. Id. § 17A.19(5). As applied to judicial review of decisions by the workers’ compensation commissioner, only the district court is authorized to grant or deny stays once a petition for judicial review has been filed. See id. § 86.26. The parties are not permitted to seek a stay from the workers’ compensation commissioner once a petition for judicial review has been filed. Id.

Under section 17A.19(5), four factors are required to be considered before entering a stay. This approach means a petition for judicial review does not automatically stay the action of the workers’ compensation commissioner. See id. § 17A.19(5) (“The filing of the petition for review does not itself stay execution or enforcement of any agency action.”). Likewise, an award of benefits by the commissioner can be converted into a judgment under section 86.42 even when a petition for judicial review has been filed as long as the district court has not entered a stay. Thus, the collection of workers’ compensation benefits and the pursuit of judicial review coexist under the statute, and judicial review does not itself stay the right to collect an award unless the district court affirmatively concludes otherwise. Yet, the present compatibility between these statutes has not always existed.

When the Iowa Administrative Procedure Act was enacted in 1974, the legislature also amended section 86.42. 1974 Iowa Acts ch. 1090, § 53. The amendments provided that a judgment converted from an award by the workers’ compensation commissioner had the force of a district court judgment only “in the absence of a petition for judicial review of the decision of the industrial commissioner.” Id. Thus, section 17A.19(5) rejected the concept that judicial review automatically stayed enforcement of a judgment, while section 86.42 endorsed the concept that judicial review stayed enforcement. Three years later, the legislature addressed this apparent conflict. Section 86.42 was amended to allow the commissioner’s decision to be converted into a decree or judgment “in the absence of a petition for judicial review or if judicial review has been commenced, in the absence of a stay of execution or enforcement.” 1977 Iowa Acts ch. 51, § 20. This change clarified two principles. First, the legislature did not want the filing of a petition for judicial review to automatically stay enforcement of a judgment in a workers’ compensation proceeding. Second, a stay in a workers’ compensation proceeding could only be entered under the same guidelines governing a stay of other agency action. Consequently, this history undermines the claim made by Grinnell College that stays during judicial review of workers’ compensation actions must be entered under different standards than stays entered in other agency action, and that stays of workers’ compensation awards should be entered as a matter of course to maintain the status quo during judicial review. Thus, we turn to section 17A.19(5) to consider the four factors governing the grant of a stay and how they apply to workers’ compensation proceedings.

The four factors enumerated in section 17A.19(5) are largely derived from factors developed under federal law for the issuance of a stay of agency action. See Teleconnect Co., 366 N.W.2d at 513-14 (explaining derivation of our four-factor analysis from the federal analysis). Although we have applied these factors in the past, we have had little occasion to elaborate on their meaning, especially in judicial review of agency action involving workers’ compensation decisions. Their meaning, however, is important considering the crucial role they play in deciding whether a stay is entered.

The first factor considers the “extent” the applicant for the stay “is likely to prevail when the court finally disposes of the matter.” Iowa Code § 17A.19(5)(c )(1). This factor does not describe the degree of likelihood of prevailing, but only requires the court to consider and balance the extent or range of the likelihood of success. See generally John W. Gotanda, Emerging Standards for Issuing Appellate Stays, 45 Baylor L.Rev. 809 (1993). Thus, the degree of likelihood of success required to be shown to obtain a stay will necessarily vary with the assessment of the other three factors. Mohammed v. Reno, 309 F.3d 95, 101 (3d Cir.2002). A stay can be granted “where the likelihood of success is not high but the balance of hardships favors the applicant.” Id. In other words, more of one factor excuses less of another factor. Id.

The second factor considers the extent the employer “will suffer irreparable injury” if a stay is not entered. Iowa Code § 17A.19(5)(c )(2). As applied to workers’ compensation proceedings, this factor must recognize that an employer has no means to obtain a stay by posting a bond during the pendency of judicial review, as the employer does in an appeal from a final decision by the district court on judicial review. See Iowa R.App. P. 6.7 (providing for stay of civil proceedings on appeal by posting of a supersedeas bond). Thus, the request for a stay by an employer can be a critical component in a judicial review proceeding when the employee converts an award into a judgment. Additionally, payment on a judgment by an employer during the pendency of judicial review can give rise to problems if the district court ultimately decides to reduce or reverse the reward. In this case, Grinnell College primarily points to the legal and practical impediments to recovering overpayments if successful on judicial review and asserts these impediments reveal that stays should ordinarily be granted. See Iowa Code § 85.34(5) (limiting recovery of overpayment of workers’ compensation benefits). Osborn asserts such impediments do not rise to the level of “irreparable injury.”

We have recognized loss of revenue, even if substantial, “does not amount to irreparable damage” to support a stay of agency action pending judicial review. Teleconnect Co., 366 N.W.2d at 514. Yet, this rule is a general statement of the law and recognizes that extreme circumstances of financial loss, even if recoverable, could amount to irreparable injury. See Wisconsin Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir.1985). Moreover, this general rule is largely premised on the principle that adequate compensation or corrective relief ultimately would be available if judicial review were successful, even though revenue may be lost in the short term in the absence of a stay. See Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C.Cir.1958). If the absence of a stay would deprive an employer of the ability to obtain relief if successful at the conclusion of judicial review, then irreparable injury could be shown. The loss-of-revenue rule was never meant to render judicial review meaningless. Instead, the irreparable-injury factor was meant to impose a strong showing on the applicant. Importantly, it requires the district court to first determine if the injury is “irreparable” and then determine the “extent” of the “irreparable injury.” In determining if the payment of a workers’ compensation judgment during the pendency of judicial review would constitute irreparable injury, the court should consider such circumstances as the extent of the relief sought on judicial review, the amount of the judgment, and the amount of the judgment that will not be recovered if paid. Of course, the employer must also establish the irreparable injury is certain and actual, not theoretical. Wisconsin Gas Co., 758 F.2d at 674. Mere allegations of “irreparable injury” have “no value since the court must decide whether the harm will in fact occur.” Id.

The third factor requires the court to balance the extent that a stay would substantially harm the employee or another party to the proceeding. In the workers’ compensation context, this factor mainly relates to the legislative purpose of workers’ compensation to provide injured workers prompt benefits once the commissioner has found benefits are due. Rivere v. Offshore Painting Contractors, 872 F.2d 1187, 1190 (5th Cir.1989) (discussing Congressional history of the Longshore and Harbor Workers’ Compensation Act). Our legislature did not intend for the judicial-review process alone to justify delay in the payment of benefits awarded by the commissioner, see Iowa Code § 17A.19(5), but wanted the district court to consider how additional delay in payment of benefits as a result of judicial review would impact the worker. Thus, the court must consider circumstances such as the amount of time needed to complete judicial review and the financial needs of the injured worker during the pendency of judicial review.

The final factor considers the public’s interest. This factor helps distinguish stays involving agency action from stays or injunctions involving purely private parties. Rochester-Genesee Reg’l Transp. Auth. v. Bridgid Hynes-Cherin, 506 F.Supp.2d 207, 212-13 (W.D.N.Y.2007). It means the interest of private litigants in agency action may need to ultimately yield to the greater public interest. See Teleconnect Co., 366 N.W.2d at 513.

In applying these factors to this case, Grinnell College first argues the district court failed to properly consider its likelihood of prevailing on the merits. Grinnell College asserts the trial court erred when it heard and decided the motion for stay prior to the time the parties had an opportunity to define and brief the issues as a part of the judicial review proceedings.

This argument overlooks that the applicant for a stay during judicial review has the burden to establish the prerequisites for a stay and must submit evidence to the district court concerning all relevant statutory factors at a hearing. The argument also fails to consider the broad objective of workers’ compensation to provide prompt benefits to injured workers. Additionally, our legislature has decided that judicial review should not automatically delay the payment of benefits. Consequently, the stay process does not contemplate the court must delay consideration of a request for a stay until the merits of the petition for judicial review have been briefed and submitted to the district court for final decision. Instead, the district court must schedule a hearing on an application for a stay and promptly decide the request based on the evidence submitted by the parties relating to the four statutory elements, including the likelihood of prevailing on the merits on judicial review.

Grinnell College next argues that the district court failed to consider its evidence of “irreparable harm.” It asserts that the difficulties of obtaining future reimbursement from Osborn, if Grinnell College were successful in reversing the award on judicial review, was supported by evidence that Osborn was no longer employed by Grinnell College at the time of judicial review. It claims this evidence means it will have no opportunity to seek reimbursement by means of a credit against any future benefits to Osborn under section 85.34(5).

We find it unnecessary to decide whether section 85.34(5) was intended to prevent an employer who has paid an award of weekly benefits converted into a judgment from seeking reimbursement from the employee if successful on judicial review. Even if Grinnell College would be unable to recover accrued benefits paid to Osborn as a result of the judgment, it has failed in this case to present any evidence that would have allowed the district court to balance this circumstance with the other three factors. Instead, Grinnell College sought to obtain a stay based almost entirely on the inherent unfairness of satisfying a judgment prior to a final decision on judicial review. Regardless of the potential merit of this argument, it is not one our legislature has accepted. See Rivere, 872 F.2d at 1191 (discussing the statutory requirements under the Longshore and Harbor Workers’ Compensation Act to obtain a stay of compensation awards pending an appeal despite persistent calls for Congress to change the strict requirements).

We conclude the district court did not abuse its discretion in denying the stay. The record supports the decision of the district court.

Y. Due Process and Equal Protection.

Grinnell College also argues its statutory and constitutional rights to due process and equal protection will be violated if it is forced to satisfy the workers’ compensation commissioner’s award before the judicial review and appeals processes have been completed. The record demonstrates none of these issues were preserved for our review.

“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal.” Id. These issues were not raised in Grinnell College’s resistance to the judgment entry or its motion to stay. Further, the district court did not decide them in its ruling on the motion to stay, nor did it address them in the judgment entry. Finally, and fatally to our consideration of these issues, Grinnell College did not file a rule 1.904(2) motion to enlarge the findings or conclusions. As a consequence, the due process and equal protection claims are not preserved for our review.

VI. Conclusion.

We affirm the decision of the district court.

AFFIRMED.

All justices concur except BAKER, J., who takes no part.

      . Grinnell College was insured by Cincinnati Insurance Company, who is also a party to this appeal. All references to Grinnell College will implicitly refer to its insurer as well.

      . We also recognize that Grinnell College appeals not only from the judgment entered on the award by the commissioner, but also from the denial of the stay. Osborn makes no claim that Grinnell College may not appeal from the judgment, but a question is raised whether the separate decision to deny the stay was an interlocutory decision and not appeal-able as a matter of right. Nevertheless, we may grant permission for an interlocutory appeal under rule of appellate procedure 6.2(1). Having determined we should consider the appeal under the exception to the mootness doctrine, we also conclude we should now consider the stay issue in the interest of sound and effective administration of justice. Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732, 735-36 (Iowa 2008).

      . Iowa Code section 626.58 also provides for a temporary stay of execution on any judgment for any party who can “procure one or more sufficient freehold sureties to enter a bond.’’ This presumably includes a judgment entered pursuant to section 86.42. However, such a stay waives the right to appeal. Iowa Code § 626.60.

      . Iowa Code section 85.34(5) governs recovery of weekly benefits paid to an employee in excess of those required to be paid under the law. The workers' compensation commissioner in this case awarded Osborn forty-eight weeks of permanent partial disability from September 15, 1995, to August 15, 2000, and permanent total disability benefits of $322.49 each week beginning August 16, 2000. The amount of the judgment entered by the district court included $110,644.37 for past-due accrued disability benefits (less benefits previously paid), medical expenses of $45,561.37, and accrued interest.
      We also find it unnecessary to decide if Iowa Code section 625A.15 applies to this case. Iowa Code section 625A.15 allows an appellate or district court to order "restoration of any part of the money or property that was taken from the appellant by means of a judgment or order” that has been reversed on appeal.


author: EISENHAUER, J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Martin Gomez TAPIA, Jr., Defendant-Appellant.
    No. 07-0506.
    Court of Appeals of Iowa.
    April 30, 2008.
    Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Barbara A. Edmondson, County Attorney, for appellee.
    Considered by MAHAN, P.J., and EISENHAUER and BAKER, JJ.
   EISENHAUER, J.

Martin Gomez Tapia, Jr. appeals from the judgement and sentence entered upon his conviction of sexual abuse in the third degree following a jury trial. He contends there is insufficient evidence to support his conviction. We review his claim for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). The jury’s verdict is binding upon a reviewing court unless there is an absence of substantial evidence in the record to sustain it. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981). Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt. Rohm, 609 N.W.2d at 509. “When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record.” State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006).

Tapia is the older brother of the victim’s boyfriend and was in town for a family celebration. The boyfriend was home on leave after completing Marine Corp basic training. The victim, seventeen, testified she and her boyfriend had sex for the first time ever in the afternoon in his bedroom. In the evening she fell asleep on the couch of the living room with her head on her boyfriend’s lap. She testified she was on the couch when she woke up and found someone trying to have sex with her. She stated she woke because “my bottoms were being pulled at, like my underwear.” When she awoke to find someone attempting to have sex with her, she assumed it was her boyfriend. She couldn’t see who it was because: “I didn’t open my eyes, and it was completely dark. I was still half — I was still half asleep.” The victim didn’t discover it was Tapia until he kissed her and she felt his facial hair. She then pushed him away. She stated she wasn’t sure, but it wasn’t a long time from the time she felt the tugging on her panties until the time she realized it was Tapia. When asked if Tapia penetrated her completely she stated: “I don’t think so.” She denied the possibility Tapia may have kissed her before he started the sex act.

Tapia testified the sex was consensual and involved multiple kisses between the parties before they were interrupted by the victim’s boyfriend returning from the restroom.

The jury was instructed the State was required to prove beyond a reasonable doubt Tapia performed a sex act with the victim and the sex act was either (1) by force or against the will of the victim or (2) while the victim was physically helpless. Because the jury returned a general verdict of guilty, the evidence must be sufficient to support both alternative theories. See State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006).

The record provides substantial evidence for the jury to conclude the sex act was done against the will of the victim. As soon as she realized the man on top of her was not her boyfriend she objected. Any acts by Tapia were clearly against her will.

Tapia mainly argues the victim was not physically helpless when the sex act occurred. The jury was instructed: “ ‘Physically helpless’ means that a person is unable to communicate an unwillingness to act because the person is unconscious, asleep, or is otherwise physically limited.” Tapia argues the victim’s testimony she awoke when her underpants were being removed and she did not think the defendant completed penetration proves she was awake and aware and thus not physically helpless when the alleged sexual contact occurred. In essence, Tapia challenges the sufficiency of the evidence concerning the victim’s state of sleep at the time of the sex act.

In Iowa “a crime commences with the first act directed toward the commission of the crime.” State v. Carter, 602 N.W.2d 818, 822 (Iowa 1999) (citing Iowa Code § 702.13). In Carter, the court rejected the defendant’s argument he was not guilty because the serious injury he inflicted did not occur simultaneously with the commission of the sexual abuse. Id. The court noted, “we have previously declined to impose rigid time ... limitations.” Id. The Carter court ruled simultaneous action was not required. Rather it was sufficient if “the injury and the sexual abuse occur as part of an unbroken chain of events or as part of one continuous series of acts connected with one another.” Id. The Carter case reveals Ta-pia’s argument is not consistent with Iowa law because Tapia’s act of pulling down the victim’s underwear was part of a continuous series of acts constituting sexual abuse. Tapia’s actions cannot be separated into segments when the victim was asleep, partially awake and awake when deciding whether a jury could conclude she was physically helpless.

While we find no Iowa Supreme Court decision on this issue, the Montana courts have ruled: “the fact a victim has some sensory perception during an incident involving sexual intercourse, does not preclude a jury from finding that the victim was asleep, and therefore ‘physically helpless,’ during the sexual intercourse.” State v. Shields, 328 Mont. 509, 122 P.3d 421, 426 (2005) (citing State v. Stevens, 311 Mont. 52, 53 P.3d 356, 363 (2002)). Similarly, the Virginia courts have concluded a sleeping victim with some sensory perception during an attack can be found to be “physically helpless” because “common experience tells us sleep is not an all or nothing condition.” Woodward v. Commonwealth, 12 Va.App. 118, 402 S.E.2d 244, 245-46 (1991); see also State v. Contreras-Cruz, 765 A.2d 849, 857 (R.I.2001) (ruling victim physically helpless when in bed and awakes to someone on top of her since jury could conclude she was “so far within the realm of sleep that she was unable to communicate her unwillingness”); People v. Vaughn, 26 A.D.3d 776, 809 N.Y.S.2d 718, 719 (N.Y.App.Div.2006) (ruling victim physically helpless when asleep during the beginning of the sexual assault).

Whether the victim was physically helpless and unable to consent when Tapia engaged in a sex act is a jury question since the “state of the victim’s physical helplessness at any given moment is largely a question of fact.” People v. Teicher, 52 N.Y.2d 638, 439 N.Y.S.2d 846, 422 N.E.2d 506, 511 (N.Y.1981). When viewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could have found the victim incapable of consent due to being asleep and physically helpless. Because substantial evidence supports the jury’s verdict, we are bound by it on appeal and affirm the verdict.

AFFIRMED.

      . The court entered judgment for violation of Iowa Code sections 709.1(1), 709.1(2), and 709.1A(2), 709.4(1), and 709.4(2)(a) (2005) and sentenced defendant under Iowa Code section 702.11.