author: GILBERTSON, Justice

text:
    2000 SD 47
    Teresa JOHNSON, Appellant, v. ALBERTSON’S, Appellee.
    No. 21110.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided April 5, 2000.

      Margo Tschetter Julius of Groves, Julius & Simpson, Rapid City, for appellant.
    Dennis W. Finch of Finch Bettmann Maks, P.C., Rapid City, for appellee.
   GILBERTSON, Justice

[¶ 1.] Teresa Johnson (Johnson) appeals the., circuit court’s order denying her claim for workers’ compensation benefits. The Office of Hearing Examiners (hearing examiner) and the circuit court found Johnson had not proven her work-related injury was causally related to her mental disability. Johnson appeals. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Johnson began working at Albert-son’s supermarket in Rapid City, South Dakota in August of 1989. On January 31, 1990, she suffered an injury to her neck and upper back while stacking baking pans in the bakery department: Johnson was treated by a chiropractor for muscle strain and was then referred to Dr. Hollis Leroy Ahrlin, an orthopedic surgeon. Dr. Ahrlin described Johnson’s condition as a back strain or myofascitis. Dr. Ahrlin concluded Johnson’s back strain would improve with time.

[¶ 3.] Johnson continued to work at Al-bertson’s and on April 22, 1990, she aggravated her muscle strain while lifting a garbage bag. Dr. Ahrlin found Johnson’s reflexes, sensation and motor function all to be within normal limits, but concluded she had aggravated her previous muscle strain. He advised Johnson to seek a different line of work, because if she continued to lift, she would again aggravate her muscle condition. Dr. Ahrlin did not expect Johnson to sustain any permanent impairment from this aggravation.

[¶ 4.] On November 13, 1990, Johnson saw Dr. Steven Goff, who recommended physical therapy. Dr. Goff never advised Johnson she could not or should not work.

[¶ 5.] On March 13, 1991, Dr. Steven Hata- determined Johnson had a 4.5 percent permanent partial physical impairment due to her muscle strain. Johnson was given a second impairment rating by Dr. Goff on March 19, 1991, of 6 percent. Two percent of this rating was from his objective findings, while four percent was due to subjective complaints by Johnson.

[¶ 6.] Rick Ostrander, a certified rehabilitation specialist, first met with Johnson in April of 1991. Based on his meetings with Johnson and his review of the depositions of Dr. Finley, Dr. Goff and Dr. Ahrlin, as well as the medical and vocational testing records, Ostrander concluded that Johnson had a 92 percent reduction in employability, and that she was essentially unemployable in her community.

[¶ 7.] Albertson’s retained Bill Penniston as its vocational expert and he found three job positions for Johnson with Albertson’s. These jobs were customer service clerk, video clerk and bakery sales clerk. Penni-ston also performed a labor market survey of the Rapid City area and identified jobs regularly available to Johnson within her physical restrictions. These jobs included being a hostess, parking lot attendant, desk clerk, flagger, airport security and a tanning salon receptionist. Penniston determined there were jobs regularly and continuously available to Johnson in the Rapid City community and that she was employable.

[¶ 8.] On January 5, 1998, a Functional Capacities Assessment (FCA) was performed on Johnson by Anthony Yurick, a physical therapist with Work Analysis Systems in Rapid City. The FCA indicated the results were an invalid representation of Johnson’s true capabilities. An invalid assessment indicates the client has manipulated the assessment by portraying less capabilities than what the client is actually able to perform, and may be malingering.

[¶ 9.] Dr. Finley’s testimony was the only new medical evidence submitted at the second hearing, held on December 2 and 3, 1997, before the hearing examiner. Dr. Finley testified in his September 23, 1997 deposition that Johnson was unemployable in the competitive labor market. He also testified her medical condition did not change substantially since his first deposition, but that her depression had increased. Dr. Finley also stated that Johnson was not malingering.

[¶ 10.] At the second hearing, Johnson claimed her January 31, 1990 work injury caused her to have pain which prevented her from working and that the pain and inability to work caused depression. ■

[¶ 11.] Shortly after Johnson received notification of the Department’s first adverse decision on her workers’ compensation claim, which was issued November 13, 1993, she was admitted to the Rapid City Regional Hospital psychiatric unit. Dr. Stephen Manlove, a psychiatrist, first saw Johnson in the psychiatric unit on November 18, 1993. Johnson later testified she was admitted because she was “devastated” by the Department’s denial of her workers’ compensation claim and “[b]e-cause they said that I was lying.”

[¶ 12.] Dr. Manlove diagnosed Johnson as having dependent and borderline personality features, which “probably were the underpinnings for. her depression.” Dr. Manlove also noted in Johnson’s history that prior to her admission, to the hospital, her stressors were the fact that she had lost her workers’ compensation case about two weeks prior, she had to leave her husband, and had written several bad checks the day before. Dr. Manlove concluded that Johnson’s January 19, 1990 injury contributed to her depression, that her depression was treatment resistant due to her pain and that her depression was a permanent medical condition making her unemployable.

[¶ 13.] On October 4, 1996, Johnson was again admitted to the psychiatric unit under the care of Dr. Vernard, who noted that she had a history of migraine headaches but denied having any other physical symptoms or medical problems at that time.

[¶ 14.] In September of 1997, Johnson underwent an MMPI-II test at the Man-love Clinic. A normal range on the validity scale or “F” scale for MMPI test results is "a score of between 50-65. Johnson’s validity .scale test results showed an elevated score of 82. Dr. Manlove, Johnson’s treating psychiatrist, testified an elevation of the F scale “suggests exaggeration of symptoms, psychopathology, or true psychopathology.” Dr. Scott Cherry, a clinical psychologist, testified at both trials on behalf of Johnson. DF Cherry believed Johnson’s MMPI-II test results were elevated but concluded she was not malingering or exaggerating symptoms.

[¶ 15.] However, Dr. Robert Arnio, a clinical psychologist who testified on behalf of Albertson’s, disagreed and stated that when the F value on the MMPI test reaches a certain range, the validity of the profile becomes questionable. He testified that scores in the range of -80-90 are suggestive ■ of malingering, and exaggerating problems ■ versus scores in the normal range of 50-65.

[¶ 16.] Finally, Dr. Richard Rewey, a psychiatrist, evaluated Johnson’s condition on behalf of Albertson’s. After meeting with Johnson on July 30, 1997, and reviewing medical and vocational records and psychological test results, Dr. Rewey diagnosed Johnson with recurrent depression, marijuana dependence and malingering. Dr. Rewey also explained that Johnson demonstrated a pattern of malingering, according to the Diagnostic and Statistical Manual-IV (DSM-IV), a standard reference for psychologists and psychiatrists. The DSM-IV states: “[m]alingering should be strongly suspected if any combination of the following is noted:

1. Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination);
2. Marked discrepancy between the person’s claimed stress or disability „ and the objective findings;
3. Lack of cooperation during the diag- ' nostie evaluation and in complying with the prescribed treatment regimen; and
4. The presence of Antisocial Personality Disorder.

[¶ 17.] Dr. Rewey also diagnosed Johnson with a mixed personality disorder with anti-social, borderline, paranoid and dependent features. Johnson was also diagnosed with myofascial strain syndrome. Dr. Rewey concluded that Johnson’s MMPI-II test results were consistent with her severe personality disorder. He testified that Johnson’s personality disorder was the cause of her depression, and that her depression was exacerbated by ongoing substance abuse of both marijuana and alcohol. Johnson’s medical records show a history of using illegal “street drugs,” i.e., marijuana, cocaine and acid. Finally, Dr. Rewey concluded that Johnson’s 1990 muscle strain was not a source of contribution to her depression, and that there was no reason she could not look for new employment.

[¶ 18.] At the second hearing, the hearing examiner found Johnson failed to meet her burden of persuasion because of lack of credibility. Johnson appealed this decision to the Sixth Judicial Circuit Court for a fourth time, which affirmed the decision of the hearing examiner and ruled Johnson had failed to meet her burden of persuasion of showing her 1990 injuries were causally related to her depression. Johnson appeals, raising the following issue for our consideration:

Whether the hearing examiner’s decision finding Johnson’s depression was not causally related to her 1990 injuries at Albertson’s was clearly erroneous.

STANDARD OF REVIEW

[¶ 19.] Our standard of review pursuant to SDCL 1-26-36 requires us to give great weight to the Department or hearing examiner on factual questions. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citing Helms v. Lynn’s, Inc., 1996 SD 8, ¶¶ 9-10, 542 N.W.2d 764, 766; Finck v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988)). This Court reviews agency findings in the same manner as the circuit court in deciding whether they were clearly erroneous in light of all the evidence. Id. (citing Matter of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415 (S.D.1986)). Only if after a review of the entire record we are definitely and firmly convinced a mistake has been committed will we reverse. Id. (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)). When the issue is a question of law, the actions of the agency are fully renewable. Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 15, 571 N.W.2d 376, 379 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766 (citing Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991)). “We review the findings based on deposition testimony and documentary evidence under a de novo standard of review.” Id. ¶ 15, 571 N.W.2d at 380 (citing Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 8, 558 N.W.2d 76-78).

ANALYSIS AND DECISION

[¶ 20.] Whether the hearing examiner’s decision finding Johnson’s depression was not causally related to her 1990 injuries at Albertson’s was clearly erroneous.

[¶ 21.] In its bench decision, the circuit court ruled that Johnson failed to meet her burden of proving her depression and psychological problems were causally related to her 1990 work-related injuries. We agree.

[¶ 22.] Before Johnson can collect any benefits under our workers’ compensation statutes, she must establish a causal connection between her injury and her employment. Kester, 1997 SD 127, ¶ 17, 571 N.W.2d at 380 (citing Caldwell, 489 N.W.2d at 357). Resolution of this issue is determinative of her claim and is clearly a question of fact, i.e., “one that is founded ‘on the application of fact-finding tribunal’s experience with the mainsprings of human conduct,’ ” “the answer to which is found in the testimony of the witnesses.” Lien v. Miracle Span Corp., 456 N.W.2d 563, 565 (S.D.1990) (internal citation omitted). We must give due regard to the opportunity of

the agency to judge the credibility of the witness. Id. In doing so, “[w]e do not substitute our judgment for the agency’s judgment on the weight of the evidence pertaining to the questions of fact[.]” Id. The causation requirement requires Johnson to show her employment was a “contributing factor” to her mental injury. Kester, 1997 SD 127, ¶ 17, 571 N.W.2d at 380. Here, it is not disputed that Johnson’s back strain arose out of and in the course of her employment with Albert-son’s. However, it is Johnson’s claim of depression resulting from these injuries that Albertson’s is contesting. Johnson argues her 1990 work related injuries contributed to her depression and her inability to work. She also contends her personal “credibility” is irrelevant to her workers’ compensation claim as she relies upon her expert witnesses. Albertson’s counters that Johnson failed to establish causation between her back strain and claim of depression. Albertson’s also argues Johnson’s claim of depression did not arise until after the Department denied her workers’ compensation claim and that she failed to establish her credibility.

[¶ 23.] Johnson was injured with her neck and upper back strain in 1990. It was not until after the Department denied her workers’ compensation claim in November of 1993 that Johnson claimed she was suffering from depression due to her physical injuries. Thus, it was not until the second hearing in this matter that Johnson made her claim of depression due to her chronic, pain and inability to work. Such a gap in time raises doubt as to whether Johnson’s depression is causally related to her-1990 injuries. “Where there is no obvious causal relationship the testimony of a medical expert may be necessary to establish the causal connection.” Id. ¶ 19 (citing Howe v. Farmers Coop. Creamery, 81 S.D. 207, 212, 132 N.W.2d 844, 846 (1965)); see also Buczynski v. Workmen’s Compensation Appeal Bd., 133 Pa.Cmwlth. 532, 576 A.2d 421, 423 (1990) (citing Hilton Hotel Corp. v. Workmen’s Compensation Appeal Bd., 102 Pa.Cmwlth. 528, 518 A.2d 1316 (1986) (stating that “[i]t is manifest ... that psychological disorders such as ... depression are not the ‘immediate and direct’ or ‘natural and probable’ consequences of a [back] strain,” and “unequivocal medical testimony” is necessary to demonstrate causation).

[¶ 24.] Although the psychological experts in this case, Dr. Cherry, Dr. Lord, Dr. Manlove, Dr. Arnio and Dr. Rewey agree that Johnson is severely depressed, they do not agree as to the cause of her depression. Dr. Rewey concluded that Johnson’s depression is not causally related to her work injuries, but “is predominantly coming from the ongoing consequences of her personality disorder ... the ongoing substance abuse, use and abuse of both marijuana ... of alcohol ... [and] from time to time of some prescription drug abuse.” Both Drs. Arnio and Manlove agreed that Johnson’s behavior observed during treatment is consistent with a borderline personality disorder. In fact, in his discharge summary dated November 26, 1993, Dr. Manlove stated that Johnson’s “dependent personality traits were a major factor in her depression.” He also stated “[Johnson] also showed a tendency to split and manipulate and also a tendency toward rejection [sensitivity] which are consistent with borderline personality disorder.”

[¶ 25.] We agree with the hearing examiner’s finding that since Johnson was lacking in credibility and because “the opinions of [Johnson’s] expert witnesses regarding her condition were based in large part on what she told them, the opinions of those experts lack an adequate foundation.” A long-accepted premise is that the purpose of expert testimony is to assist the trier of fact and not to supplant it. Bridge v. Karl’s Inc., 538 N.W.2d 521, 525 (S.D.1995) (citing Olesen v. Lee, 524 N.W.2d 616, 620 (S.D.1994)). Experts do not determine credibility.

This state is not a trial-by-expert jurisdiction. Cf State v. Jenkins, 260 N.W.2d 509, 513 (S.D.1977). The value of the opinion of an expert witness is no better than the facts upon which it is based. It cannot rise above its foundation and proves nothing if its factual basis is not true. It may prove little if only partially true. Podio v. American Colloid Co., 83 S.D. 528, 532, 162 N.W.2d 385, 387 (1968). The credibility of witnesses and the evidentiary value of their testimony falls solely within the province of the [fact finder].

Id.

[¶ 26.] “The trier of fact is free to accept all of, part of, or none of, an expert’s opinion.” Kester, 1997 SD 127, ¶ 24, 571 N.W.2d at 380 (citing Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988)). The reviewing agency “is not required to accept the testimony of the claimant and is free to choose between conflicting testimony.” Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 29, 576 N.W.2d 237, 242-43 (citing Petersen v. Hinky Dinky, 515 N.W.2d 226, 235 (S.D.1994)). There is substantial evidence to support the determinations of the hearing examiner and the Department that Johnson was not a credible witness and, thus, her subjective testimony as to pain could also be determined not to be credible. Id.

[¶ 27.] There is substantial evidence in the record to support the hearing examiner’s determination that Johnson was malingering. Johnson’s expert, Dr. Cherry, agreed with Dr. Rewey that the most “objective” evaluation of Johnson in this case is the MMPI testing. The results of the testing suggested Johnson may be malingering her physical symptoms. After a review of all the evidence in this case, it appears all four of the indicators of malingering are present. First, the medical legal context of Johnson’s claim — Johnson’s claim of depression and resulting treatment — only began after her claim was denied by the Department. Most notably, neither Dr. Lord nor Dr. Manlove were aware of any treatment for depression of Johnson until her workers’ compensation claim was denied.

[¶ 28.] Second, there is a marked discrepancy between Johnson’s claimed depression and the objective findings. Dr. Goff stated that the FCA is the only objective means available to evaluate Johnson’s physical ability to work. Yurick testified that the FCA was an invalid assessment of Johnson’s true capacities. He testified Johnson had manipulated the assessment by portraying less physical capabilities then what she was actually able to perform. Yurick also indicated Johnson overemphasized during certain activities, portraying distress by grasping her shoulder, struggle to move weights and hunch over at the waist while reporting difficulty. Yu-rick observed that Johnson’s heart rate did not support the level of distress or exertion exhibited by her in the exercises.

Johnson’s elevated score of 82 on the MMPI-II also suggests malingering. The normal range for the MMPI-II is between 50-65. Dr. Cherry admitted the F scale on the MMPI test of Johnson was elevated. Dr. Arnio testified that scores in the range of 80-90 are suggestive of malingering and exagger- . ating symptoms. Dr. Arnio also reviewed Johnson’s MMPI-II test results, and took her answers and re-entered them into a computer program provided by National Computer Systems and generated an “interpretátive report.” Dr. Arnio testified that the interpretative report is usually run if there is a question or if the profiles are highly elevated: The advantage of this report is that the interpretative statements offered in the report are based upon specific" mathematical criteria developed by the makers of the test. Dr. Arnio also explained that since the interpretative report is computer generated it can be more objective and not subject to human factors of interpretation.

[¶ 29.] Third, Johnson showed lack of cooperation during her' evaluations and in complying with prescribed treatment. During some of Johnson’s psychiatric hospital admissions, she refused physicals, drug testing, denied any history of alcohol or drug abuse, denied any history of legal problems, and left the hospital .against medical advice. Johnson has an extensive history of drug use, including marijuana, cocaine and acid. She testified before the hearing examiner that she uses marijuana “[p]robabIy twice, three times a week....” Johnson also denied ever having suicidal thoughts. Moreover, when Johnson was admitted to the psychiatric unit on July 10, 1997, she denied having any physical symptoms and refused to be examined. There is also evidence in the record that Johnson may not have been entirely truthful to Carol Foster, a counselor who testified for Johnson at the second trial. On September 9, 1997, Johnson told Foster she had not gambled, smoked marijuana or drank any alcohol for two weeks. However, the discharge summary from Johnson’s psychiatric visit to the hospital in October of 1997 included a toxicology report which indicated Johnson had tested positive for cannabis.

[¶ 30.] The fourth factor is the presence of Antisocial Personality Disorder. Dr. Rewey concluded Johnson suffers from a mixed personality disorder, “with features of antisocial, borderline, paranoid, and dependent features.” Dr. Manlove agreed Johnson’s behavior is consistent with borderline personality disorder.

[¶ 31.] After reviewing the extensive record in this case, it is clear Johnson’s credibility is questionable. Before the first trial in this case, Johnson searched for some work after completing her pain management program. She performed some volunteer work for the City of Rapid City as a file clerk. Johnson’s supervisor there testified that Johnson performed, her duties without any problems, but that she was terminated when she did not show up for her assigned duties. The supervisor also testified Johnson had advised her one of the reasons she had to quit the volunteer job was she could not afford gas for her car. However, Johnson testified she did not return to the. job because it aggravated her condition.

[¶ 32.] Johnson also admitted she could work. She testified before the hearing examiner that she could handle certain kinds of work. Johnson had worked as a restaurant hostess, and “didn’t mind hostessing. It was more tedious just standing there. I’m more of an energetic motivated person. And to just stand around, it was quite boring, I might say.” Johnson also testified she had worked for about six months for two towing services and had cleaned a friend’s trailer. Yet Johnson then testified at the same hearing that she could not work at all.

[¶ 33.] In addition, Johnson contends her pain and inability to work caused her to be depressed and that was the reason for her admission to psychiatric care. However, Johnson testified that in November of 1993, she was admitted to the psychiatric unit at the Rapid City Regional Hospital because she was “devastated” by the Department’s decision denying her workers’ compensation claim and finding lack of credibility on her part. Also, after the initial adverse decision by the Department in October of 1993, Johnson wrote to Cox-Pierce Agency, an insurance adjustment agency for Albertson’s. Johnson wrote:

In light of the recent treatment I received from you and the state of South Dakota, I was recently hospitalized, I am presently under treatment for a severe case of depression. I do also intend to charge you with my mental condition. It does not take a rocket scientist to figure out that let down after let down from you and the state is what led to my depressive state.

[¶ 34.] Finally, the Rapid City Regional Hospital psychiatric unit utilizes a form entitled “What’s the Problem?” The form asks the patient to list things in his or her life which led to the hospitalization. Johnson listed several things on the form as precipitating her admission: “Albertson’s 11-93; Department of Labor - Judge Marcia Whiting; Wayne Latón from Action Auto; Don Alexander from Frontier Motors; Augie Martinez, boyfriend; mother-father-brothers.” There is no mention of any physical pain or problems on this form. It is apparent from the evidence in this case that Johnson consistently refers to the date of November 1993 as the day she lost her workers’ compensation claim and the reasons for her mental problems. We agree with the circuit court’s conclusion that there is evidence in the record that Johnson’s physical pain was not a contributing factor to her depression. Rather, the record indicates Johnson’s mental condition was instead caused from the legal process involved in her workers’ compensation claim.

[¶ 35.] This case has been appealed to the Sixth Judicial Circuit Court four times. Each time the case was remanded back to the Department, the ALJ found Johnson lacking in credibility. The hearing examiner, as well as the circuit court agreed lack Johnson’s credibility was a major issue in this case. We agree.

[¶ 36.] After a review of the extensive record in this case, a case that has spanned over six years of litigation, we are not left with a definite and firm conviction a mistake has been made. It is the duty of the Department and the hearing examiner to choose between conflicting expert testimony and to judge Johnson’s credibility. Wagaman, 1998 SD 27, ¶43, 576 N.W.2d at 244 (citing Hanson, 425 N.W.2d at 398). Given the hearing examiner’s ability to judge the credibility of the witnesses, we cannot say it was clearly erroneous in denying Johnson workers’ compensation benefits for her depression. The findings of both the Department and the hearing examiner that Johnson was lacking in credibility were not clearly erroneous, as we find substantial evidence to support their conclusions. The hearing examiner was free to disregard Johnson’s testimony and her medical experts as their opinions were based upon her’ subjective complaints. Likewise, the hearing examiner was entitled to give greater weight to Dr. Rewey’s testimony and opinions.

[¶ 37.] The decision of the hearing examiner is affirmed.

[¶ 38.] MILLER, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

      . Myofascitis is defined as: "inflammation of a muscle and its fascia, particularly of the fascial insertion of muscle to bone.” The Sloane-Dorland Annotated Medical-Legal Dictionary 472 (1987). t. ,

      . Johnson received temporary total disability payments through March 11, 1991 in the amount of $5,596.92.

      . An FCA is a procedure where a therapist has a patient perform a series of activities to identify what that patient’s capabilities are in performing the activities. Twenty-two standardized functional activities are assessed, including sitting, standing and walking, bending/stooping, squatting, crawling, climbing stairs, crouching, kneeling, balancing, moving weight, lifting, pushing, pulling and carrying. The therapist also examines activities that require repetitive use of the hands, feet and neck.

      . Malingering is the voluntary production and presentation of false or grossly exaggerated physical or psychological symptoms. The symptoms are produced in pursuit of certain goals, such as: to avoid military conscription or duty, to avoid work, to obtain financial compensation, to evade criminal prosecution, or to obtain drugs. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-III) § V65.20 Malingering (3d ed. 1980). This is consistent with Dr. Rewey’s testimony concerning malingering. This Court has also defined malingering as "feigning or intentional exaggeration of a disability in order to draw compensation benefits.” Welch v. Automotive Co., 528 N.W.2d 406, 408 (S.D.1995).

      . Initially, this case was tried before the Department on March 30, 1993. A memorandum decision was issued on November 18, 1993, finding Johnson lacking in credibility and denying her claim for permanent total disability benefits.
      Johnson then appealed to the Sixth Judicial Circuit Court, which found on September 15, 1994 that the Department had inappropriately applied the burden of proof requirement by assessing credibility at the prima facie stage of the proceedings. The court remanded the case back to the ALJ for further findings. The court stated:
      The Department should clearly articulate whether it concluded] that [Johnson] failed to meet her 'burden of persuasion' of substantial evidence to establish a pri-ma facie showing. It should then consider conflicting evidence and credibility and articulate whether after a consideration of all the evidence, [Johnson] failed to meet her burden of persuasion.
      Upon remand and after applying the standard of proof as directed by the circuit court, the Department found that Johnson did not meet her burden of persuasion in proving a compensable claim.
      Johnson appealed to the circuit court, which again remanded the case to the Department to review its findings of fact concerning whether Albertson’s had met its burden of proving suitable work was regularly and continuously available. However, the circuit court noted that "[i]n light of the Department's credibility judgments of [Johnson], this omission may appear to be a formality not worthy of remand.”

      . MMPI stands for Minnesota Multi-Phasic Personality Inventory. The test is a standard objective psychological battery consisting of 550-566 true-false questions concerning behavior, feelings, social attitudes, and frank symptoms of psychopathology. To each question, the subject must answer true, false or cannot say. The subject's answer sheet is then scored by various keys that have been standardized on different diagnostic groups atid personality types. Sloane-Dorland Annotated Medical-Legal Dictionary 717 (1987); Psychiatric Dictionary 640 (5th ed. 1981).

      . Prior to its amendment in 1995, SDCL 62-1-1 stated:
      [p]ursuant to SDCL 62-1-1(7), "[a] mental injury is compensable only if a compensa-ble physical injury is and remains a major contributing cause of the mental injury, as shown by clear and convincing evidence. A mental injury is any psychological, psychiatric, or emotional condition for which compensation is sought.”

      . Essentially Johnson is arguing she has suffered a "physical-mental” injury. We noted in Everingim v. Good Samaritan Center, 1996 SD 104, ¶ 25, 552 N.W.2d 837, 841, a physical-mental injury is defined as: "[wjhen there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now uniformly held that the full disability including the effects of the neurosis is compensable.”

      . Dr. Finley did not give an opinion as to whether the depression was causally related to her muscle strain injury.

      . It appears Johnson takes several medications for her depression, including Prozac.

      . The record indicates Johnson would occasionally "bum” prescription medications from other people.

      . Johnson had previously been counseled for depression and suicidal thoughts. In 1987 Johnson was counseled for depression at West River Mental Health Center (Behavior Management). Again, in May of 1989 Johnson was admitted there after a threatened overdose.

      . In addition to all of the above-mentioned evidence, there is evidence that Johnson has been convicted of a crime involving dishonesty. Johnson admitted that in October of 1993 she had been arrested for and found guilty of shoplifting. She was also charged with drug possession and possession of drug paraphernalia in 1993 as well. Finally, at the second trial before the hearing examiner, after testifying about the above conviction, Johnson denied that she had any other arrests or convictions. However, counsel reminded her on cross-examination that she had been arrested for obstruction of justice.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2000 SD 61
    Michael MANUEL and Sharon Manuel, Plaintiffs and Appellants, v. Timothy J. WILKA and Michael Kenyon, d/b/a Top Hat and Tails, Defendants and Appellees,
    No. 21121.
    Supreme Court of South Dakota.
    Argued March 22, 2000.
    Decided May 10, 2000.

      Jonathan K. Van Patten, Vermillion, South Dakota, for plaintiffs and appellants.
    Rory King of Siegel, Barnett & Schütz Aberdeen, South Dakota, for defendants and appellees.
   SABERS, Justice.

[¶ 1.] After much litigation, including claims and counterclaims, Michael Manuel sued Michael Kenyon and Kenyon’s attorney, Timothy Wilka, for malicious prosecution. The trial court granted defendants’ motion for summary judgment. We reverse and remand for trial.

FACTS

[¶ 2.] In July 1993, Michael Manuel heard water dripping , in two walls in his home. Upon inspection, he found that the water was coming through the roof around the south chimney. He determined that the cause of the leak and the water in his home was deterioration of the chimney chase, which is the exterior covering of a chimney.

[¶ 3.] Manuel called Kenyon, a “chimney sweep” and repairman, and asked for an estimate for replacing the chase. On July 26, 1993, Kenyon inspected the chase and confirmed that the facing was coming off. He submitted an estimate to Manuel for replacement of the chase:

The estimate also provided that payment was due when the work was completed. Manuel accepted the estimate on July 28, 1993.

[¶4.] On August 18, the day Kenyon arrived to make the repairs, Manuel was vacationing in Canada. When Kenyon removed the old chase and the flashing attached to the chase, he discovered what he believed to be an extensive amount of soft, rotting plywood decking on the roof. He claims that the decking had to be repaired or replaced before the chase, flashing and shingles could be permanently installed. Therefore, he claims he had his brother temporarily repair the roof. He intended to inform Manuel, upon his return from vacation, that the chase and shingles were not permanently affixed and that he would finish the job when the roof decking was replaced.

[¶ 5.] After making the temporary repairs, Kenyon spoke with Shannon Larsen, Manuel’s adult daughter, at the Manuel residence. He requested, insisted and received a check for the roof repairs in the full amount of $583. Kenyon claims he told Larsen that the decking was rotting and needed immediate attention. Larsen admits that he told her there was some water damage, but claims that Kenyon did not elaborate any further. She further claims that she “asked him if [her] parents should call him when they returned home and he said that was not necessary.”

[¶ 6.] When Manuel returned from his vacation on August 20, he discovered a substantial leak inside the house near the chimney. The source of the leak was in the area that he employed Kenyon to repair. He testified that he was angry and found the repairs to be “unbelievable.” Before discussing the quality of the work with Kenyon, Manuel stopped payment on his check and asked Ralph Jakobsen, an acquaintance with roofing experience, to examine and evaluate the repair work. Manuel, who believed that Kenyon fully completed the job, videotaped Jakobsen’s examination.

[¶ 7.] After the videotaping was complete, Manuel contacted Kenyon and told him that “it was worst damn job” he has ever seen. Thereafter, Kenyon claims that Manuel called him numerous times and was very “threatening, profane and angry.” He was convinced that Manuel was going to sue him.

[¶ 8.] Kenyon contacted Wilka on September 8, 1993. Wilka wrote a letter to Manuel on Kenyon’s behalf on September 9 and advised Kenyon that his best course of action at that time was to sue Manuel for $583 in small claims court.

[¶ 9.] Manuel responded with a letter to Wilka dated September 19, 1993 and a copy of the videotape. In the letter, he stated that “it appears this may have been the first time [Kenyon] has ever ventured past cleaning chimneys to actually attempting repair work.” In, referring to the videotape, he stated in the letter that one reaction is “of course, to show it to someone else. It’s a human trait to share laughter and unbelievable happenings with others — like ‘hey, you guys, you have got to see this.’ ” He further stated in the letter that he showed the videotape to “two fire insurance underwriters, the [Sioux Falls] Fire Protection Bureau (great interest shown here), Orlan Norgaard ([Sioux Falls] fire chief), the city inspector’s office (great interest shown here), a firm 'that specializes in fireplace installation, and a housing contractor.” Manuel concluded that Kenyon owed him $252, the amount he paid another contractor to “undo the exterior damage” Kenyon did to his roof.

[¶ 10.] On September 21, Kenyon received a phone call from Ron Bell, the city building inspector, who asked him to come to City Hall immediately. Bell told him that he “better start pulling permits.out” so his work can be inspected.

[¶ 11.] Two weeks later, Kenyon received a second billing from Manuel. He also heard that Manuel was contacting more people about the quality of his work. Kenyon feared that the videotape and Manuel’s statements about him were harming his reputation and his business.

[¶ 12.] On October 9, 1993, Kenyon sued Manuel for slander and intentional infliction of emotional distress seeking $10,000 in compensatory damages and $100,000 in punitive damages. Manuel counterclaimed alleging he was entitled to $252 for breach of contract and an undetermined amount for emotional damages and $100,000 in punitive damages for malicious prosecution. The circuit court dismissed the malicious prosecution claim without prejudice be-causeit was premature.

[¶ 13.] In late fall of 1994, Wilka contacted Bell and inquired about Manuel’s contacts with him and other city officials. Bell commented to Wilka that Manuel was angry when he showed him the videotape and that “he sure had plenty to say about Mr. Kenyon, and none of it good.”. After speaking with Kenyon, Bell told Manuel that “the shingles obviously were not installed in accordance with the building code,” but that there was also “some type of lack of communication” between the two regarding the temporary nature of the repair work. ,Bell later told Wilka that he thought Manuel brought the videotape down to City Hall and showed it to various officials in order to “make Kenyon look like shit.”

[¶ 14.] After the depositions were taken, Kenyon brought a motion to dismiss the entire case. Manuel did not oppose the motion. Kenyon’s complaint and Manuel’s counterclaim were dismissed without prejudice.

[¶ 15.] Despite the dismissal, Kenyon then filed a breach' of contract claim for $583 in small claims court. Manuel filed a 'petition to remove the claim to circuit court. Wilka filed an amended complaint eliminating slander but asserting breach of contract and intentional infliction of emotional distress. He sought $10,000 in compensatory damages and $100,000 in punitive damages. Manuel asserted his breach of contract claim for $252. On the eve of trial, in November of 1995, the parties agreed to a dismissal of these claims with prejudice. The settlement was approved by the circuit court.

[¶ 16.] On July 15, 1997, Manuel sued Kenyon and attorney Wilka for malicious prosecution claiming compensatory and punitive damages, in amounts to be determined at trial. Wilka motioned for summary judgment for defendants, which was granted on June 8, 1999. Manuel appeals raising three issues.

STANDARD OF REVIEW

[¶ 17.] Our standard of review for summary judgment is well established and briefly is “whether a genuine issue of material fact exists and whether the law was correctly applied.” Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted).

MALICIOUS PROSECUTION

[f 18.] “A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure.” Specialty Mills v. Citizens State Bank, 1997 SD 7, ¶ 9, 558 N.W.2d 617, 620 (quoting Kunz v. Johnson, 74 S.D. 577, 582, 57 N.W.2d 116, 119 (1953) (citation omitted)). Malicious prosecution requires six elements:

1. The commencement or continuance of an original criminal or civil judicial proceeding;
2. [I]ts legal causation by the present defendant against plaintiff, who was defendant in the original proceeding;
3. [I]ts bona fide termination in favor of the present plaintiff;
4. [T]he absence of probable cause for such proceeding;
5. [T]he presence of malice; and
6. [D]amages conforming to legal standards resulting to plaintiff.

Id. (quoting Miessner v. All Dakota Ins. Associates, Inc., 515 N.W.2d 198, 200 (S.D. 1994) (citations omitted)). If the plaintiff cannot sustain any one of the six elements, the action fails.

[¶ 19.] Defendants argued in trial court for summary judgment that Manuel could not satisfy element 4), an absence of probable cause, and 5), the presence of malice. The trial court agreed and also determined that element 3), favorable termination to Manuel, was missing.

[¶ 20.] 1. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE DISMISSAL OF THE PRIOR ACTION WAS “NOT FAVORABLE” TO MANUEL.

[¶ 21.] Attorney Wilka motioned for summary judgment for defendants on the grounds that he had probable cause to bring the slander action and that there was no showing of malice. He did not raise the matter of favorable termination, which is a question of law. The trial court, however, raised the issue sua sponte and concluded:

Neither party to this action can properly claim to have been the victor in the proceedings that have taken place here.... The withdrawal of Kenyon’s claim did not result from a lack of probable cause, but through a mutual agreement between the parties to dismiss all claims and bring all proceedings to a close. Therefore, it is the opinion of this court, that Manuel cannot successfully satisfy the third element of an action for malicious prosecution — a bona fide termination in favor of the present plaintiff.

The trial court also noted that “[b]oth parties had $100,000 claims hanging over each other’s heads.” Although generally true, this statement is not correct in the sense that, at that time, Manuel’s claim for malicious prosecution was not included in the dismissal with prejudice because it was determined premature and could be brought later.

[¶ 22.] “Favorable termination ‘is a question of law normally to be determined by the trial court, as it requires the court to draw a conclusion based upon its legal judgment as to the significance of the prior judgment in light of the relief requested.’ ” Specialty Mills, Inc., 1997 SD 7, ¶ 12, 558 N.W.2d at 621 (quoting Schwartz v. First Nat’l Bank in Sioux Falls, 390 N.W.2d 568, 571 (S.D.19S6) (other citations omitted)). Questions of law are reviewed de novo. . Id.

[¶ 23.] Manuel argues that Wilka’s “dismissal of Kenyon’s action for $110,000 in damages declared, in effect, that he had no case.” Therefore, Manuel claims the result was indeed favorable to him.

[¶ 24.] Wilka and Kenyon originally sued Manuel for slander and intentional infliction of emotional distress. Manuel counterclaimed for malicious prosecution, but this was later dismissed because it was premature. Kenyon gave a deposition unfavorable to his position and, apparently, undermined his cause of action for slander. Therefore, Wilka filed a motion to dismiss, without prejudice, including: Kenyon’s case for $110,000 for slander and intentional infliction of emotional distress and Manuel’s case for $252 for breach of contract. This motion was not resisted by Manuel. The motion was granted by the trial court on June 27,1994.

[¶ 25.] As indicated in ¶ 15, Kenyon then filed a breach of contract claim for $583 in smah claims court, which was removed to circuit court. Wilka filed ' an amended complaint eliminating slander but asserting breach of contract and intentional infliction of emotional distress, claiming $10,000 in compensatory damages and $100,000 in punitive damages. Manuel reasserted his claim for breach of contract for $252: On the eve of trial, in November of 1995; the parties agreed to a dismissal of these claims with prejudice.

[¶ 26.] A “Stipulation and Judgment of Dismissal,” signed by the attorneys for both parties, provided:

IT IS HEREBY STIPULATED AND AGREED, by and between the above named parties, that this action may be dismissed upon the merits, with prejudice, and -without costs to either party.

Even though an order, dated November 13; 1995, dismissed the case with prejudice, the parties agreed that Manuel reserved the right to pursue his claim for sanctions against attorney Wilka in the amount of $1,600.

■ [¶ 27.] In evaluating the “significance of the prior judgment in light of the relief requested,” it is clear that the result of the underlying action was favorable to Manuel. Manuel’s malicious prosecution claim survived the dismissal because, as indicated, the trial court had already dismissed the claim without prejudice on the basis that it was premature. If the malicious prosecution claim had been included by stipulation and agreement of the parties in the Judgment of Dismissal with prejudice, as the trial court incorrectly' stated, the termination would not have been favorable to Manuel.

[¶ 28.] Furthermore, a Rule 11 sanction proceeding against attorney Wilka was excepted from the dismissal and Manuel received a favorable result requiring Wilka to pay $1,885 in sanctions. Wilka did' not appeal the imposition of sanctions but instead paid the amount.

[¶ 29.] The dismissal of all of Kenyon’s claims against Manuel for $110,000 in consideration of dismissal of Manuel’s claim against Kenyon for $252 -with the survival of Manuel’s claim against Wilka for sanctions and his claim against both defendants for malicious prosecution constitutes a favorable termination to Manuel. For these reasons, the trial court erred in determining that the termination was not favorable to Manuel.

[¶ 30.] 2. WHETHER ATTORNEY WIL-KA HAD PROBABLE CAUSE TO BRING AN ACTION FOR SLANDER AGAINST MANUEL.

[¶ 31.] Manuel claims that there was no communication to establish that he committed defamation. Wilka argues that the videotape and the letter from Manuel to Wilka are sufficient communications that a defamation cause of action may have existed against Manuel. He asserts that Manuel showed the videotape to certain individuals and officials and represented Kenyon’s work as completed, a representation Kenyon and Wilka claim is false. Wilka further argues that in showing the videotape, Manuel either intended to harm Kenyon or acted with reckless disregard for Kenyon’s reputation and business.

[¶ 32.] “One who initiates civil proceedings against another has probable cause for so doing if he reasonably believes in the existence of the facts upon which his claim is based, and ... reasonably believes that under such facts the claim may be valid at common law or under existing statute.... ” Kunz, 57 N.W.2d at 119 (quoting Restatement of Torts § 675). One does not need to be certain of the outcome to have probable cause for initiating an action. 52 Am.Jur.2d Malicious Prosecution § 51 (1970). Furthermore, in determining whether one has probable cause, “the conduct of the defendant [in the malicious prosecution action] is to be weighed in mew of what [reasonably] appeared to him at the time of instituting the prior proceeding, not in the light of subsequently appearing facts.” Id. (emphasis added). It is an objective test, not a subjective test. Restatement (Second) of Torts § 662, cmt. c (citing Roberts v. Federal Express Corp., 842 S.W.2d 246, 248 (Tenn.1992) (stating “[p]robable cause is to be determined solely from an objective examination of the surrounding facts and circumstances.”)).

[¶ 33.] “In cases with undisputed or admitted facts, the question of probable cause is one entirely for the court to determine, but if the facts are in conflict and reasonable minds could reach different conclusions, it is for the jury’s determination after proper instruction by the court.” Wittmeier v. Gall, 319 N.W.2d 501, 501 (S.D.1982) (quoting Bucher v. Staley, 297 N.W.2d 802, 805 (S.D.1980)). “The question of probable cause may be one of law or one of fact, depending upon the circumstances in each case.” Bucher, 297 N.W.2d at 805.

[¶ 34.] Here, the underlying case was for slander. Slander is defined as:

[A] false and unprivileged publication, other than libel, which: ...
(3) Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit....

SDGL 20-11-4. In order to prove a slander case, there must be a communication of an objective fact that is false. Paint Brush Corp. v. Neu, 1999 SD 120, ¶ 47, 599 N.W.2d 384, 396 (stating that “ ‘expressions of opinion may often imply assertions of objective fact,’ and those statements are actionable”) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1, 17 (1990)). Thus, the dispositive question is whether a reasonable factfinder could conclude that the statements in the videotape and Manuel’s letter to Wilka “imply a false assertion of objective fact” with regard to Kenyon’s business reputation. Id.

[¶ 35.] The trial court determined that no genuine issues of material fact existed and granted attorney Wilka’s motion for summary judgment. In viewing the evidence in a light most favorably to Manuel, we determine that genuine issues of material fact exist whether the videotape and the letter from Manuel to Wilka rise to the level of slander. The videotape depicts a highly critical evaluation conducted by a roofing contractor of Kenyon’s work. Manuel showed this videotape to several individuals and officials within the Sioux Falls community because he believed that the job was completed. The letter also reflects that Manuel believed that Kenyon’s job was complete and that several professionals were “interested” to see the manner of work done by Kenyon. Since Kenyon requested and received a check for the full amount of the contract price upon completion of the “repairs,” there was a factual basis for Manuel to believe that the job was “completed” rather than “temporarily repaired.”

[¶ 36.] In viewing the facts known to Wilka at the time he commenced the slander action, a question of fact exists whether he reasonably believed that Kenyon possessed a valid claim of slander against Manuel. Because reasonable minds could reach different conclusions whether attorney Wilka initiated the civil proceedings for an improper purpose, the trial court erred in granting summary judgment.

[¶ 37.] 3. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT MALICE MAY NOT BE INFERRED TO ATTORNEY WILKA BASED ON A LACK OF PROBABLE CAUSE.

[¶ 38.] Manuel argues that attorney Wilka “lost perspective” on this $583.00 “small claims breach of contract action” and brought the $110,000 lawsuit to “retaliate against Manuel for his sarcastic, defiant attitude.” Op. the other hand, Wil-ka argues that the “undisputed facts show that he did have reasons to believe that Kenyon had a valid claim against Manuel.”

[¶ 39.] Malice is essential to the maintenance and recovery of a malicious prosecution action. Malice “exists when the proceedings are instituted primarily for an improper purpose.” Huntley v. Harberts, 264 N.W.2d 497, 501 (S.D.1978) (citation omitted). An improper purpose occurs in situations where:

the plaintiff in the original action was actuated by any unjustifiable motive, as where he did not believe his claim would be held valid, or where his primary motive was hostility or ill will, or where his sole purpose was to deprive the defendant of a beneficial use of his property or to force a settlement having no relation to the merits of the claim.

52 Am.Jur.2d Malicious Prosecution § 48 (1970). However, there does not need to be a “showing of actual hostility, a grudge, or ill will between the individuals involved to support a finding of malice in an action for malicious prosecution.” Huntley, 264 N.W.2d at 501. Additionally, although malice is not the same as want of probable cause, “[t]he jury may infer [evidence of] malice from a want of probable cause.” Id. (citing Richardson v. Dybedahl, 14 S.D. 126, 84 N.W. 486 (1900); Wuest v. Ameri can Tobacco Co., 10 S.D. 394, 73 N.W. 903 (1898)).

[¶ 40.] Whether attorney Wilka initiated the slander action against Manuel primarily for an improper purpose is a “question of fact for the jury.” Id. See also McIntyre v. Meyer, 81 S.D. 417, 136 N.W.2d 351, 353 (1965) (quoting Krause v. Bishop, 18 S.D. 298, 100 N.W. 434 (1904) in stating “actual malice and bad faith are never presumed by the court.”).

[¶ 41.] We conclude that genuine issues of material fact exist concerning 5), an absence of malice, and the trial court erred in granting Wilka’s motion for summary judgment. “The trial court is not to decide the issues of fact, just determine if any such issues exist.” Paint Brush Corp., 1999 SD 120, ¶ 31, 599 N.W.2d at 392 (citing Wilson v. Great Northern Railway Co., 83 S.D. 207, 211, 157 N.W.2d 19, 21 (1968)).

[¶ 42.] We reverse and remand for trial.

[¶ 43.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . Larsen was not deposed but signed an affidavit dated May 6, 1999 attesting to these fácts.

      . Manuel's counterclaim seeking emotional damages in an undetermined amount and punitive damages of $100,000 was also dismissed because they allegedly resulted from malicious prosecution.

      . A loss of consortium claim by Sharon Manuel was also included seeking compensatory and punitive damages.

      . Although not controlling here, the following statements of the trial court judge in the sanctions matter support the concept that there are genuine issues of material fact and that reasonable minds might differ as to both 4), absence of probable cause, and 5), presence of malice:
      The contract reads remove chase, remove flashing, remove shingles around chase, reinstall chase, flashing, and shingles. That’s the way it reads. It’s what it means. It wasn't done period. I don’t know what system was used in the initial installation. Whatever system was used, it won’t work period.... How do we escalate a claim for [$583] into a $100,000 slander suit? '...
      I do not believe that ... Mr. Wilka’s actions were reasonable under the circumstances as far. as his investigation to commence the suit in slander. I do not find that there were reasonable efforts made. I don’t think there was a reasonable basis for the same.... To me, quite frankly, in looking at the videotape, it is simply a process of, number one, we have a claim, a contract. Was it done or wasn’t it done? I do not understand how something of this nature can be escalated into what it became, nor do I think that it’s reasonable under the circumstances that the action was commenced in the fashion in which it was. I think that I can make that finding under Rule 11 by clear and convincing evidence from that standpoint. The standard of review does not require that. I believe that reasonable efforts were not made to ensure that there was an action for slander....

        . See supra footnote 4.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellant, v. Lynn SCHMITZ, Appellee.
    No. 98-1863.
    Supreme Court of Iowa.
    April 26, 2000.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Fred H. McCaw, County Attorney, and Tim Gallagher, Assistant County Attorney, for appellant.
    Thomas P. Frerichs and Brandon Adams of Frerichs Law Office, P.C., Waterloo, for appellee.
   TERNUS, Justice.

After the defendant, Lynn Schmitz, was convicted of one count of theft in the second degree, the district court dismissed the second and third theft charges filed against Schmitz, ruling that prosecution on these charges would violate the Double Jeopardy Clause. See U.S. Const, amend. V. The court concluded that the three charges, all based on the defendant’s exercise of control over stolen property, constituted the same offense. See Iowa Code §§ 714.1(4), .2(2) (1995). Under the facts of this case, we disagree. Accordingly, we reverse and remand for trial on the remaining theft charges.

I. Background Facts and Proceedings.

On May 10, 1996, law enforcement officers executed a search warrant at the defendant’s residence and found multiple items of stolen property. Based on this search, the county attorney filed three separate charges of theft in the second degree against the defendant. See id. The statutes providing the basis for these charges prohibit the knowing exercise of control over stolen property having a value in excess of $1,000, but not exceeding $10,-000. See id.

The first charge was based upon the defendant’s possession of pet supplies, including a fish aquarium, stolen from the Fish Haven Pet Store in Platteville, Wisconsin on October 3, 1995. The second charge was founded on the defendant’s possession of a reversible leather Notre Dame jacket stolen from a Fanfare store in a Dubuque shopping mall on November 24, 1994. The third charge was based upon the defendant’s possession of four wheels and four tires stolen from a vehicle at Bird Chevrolet in Dubuque on May 4, 1996.

The charges were set for trial on the same day. Upon the defendant’s objection to consolidation of the cases, the district court ruled that it would hear the cases back to back, beginning with the pet supplies case. The defendant’s attorney informed the court that, upon conclusion of the first case, he would move to dismiss the remaining charges on the basis of double jeopardy. The court indicated it would hear arguments and rule on the double jeopardy claim at the conclusion of the first trial.

The pet supplies case was tried to the court. The court ruled that the State had proved that the defendant exercised control over stolen property — the pet supplies — in violation of Iowa Code section 714.1(4). The court then considered the defendant’s motion to dismiss the remaining charges. It concluded that exercising control over stolen property on the same day, in the same location, is one act, irrespective of whether there were different victims. Therefore, the court reasoned, once the defendant was prosecuted on the first charge, jeopardy attached and further prosecution on the remaining charges was barred by the Double Jeopardy Clause. Accordingly, the court dismissed the second and third theft charges against the defendant.

The State has appealed that ruling. Our review of the court’s ruling on the defendant’s constitutional claim is de novo. See State v. Spilger, 508 N.W.2d 650, 651 (Iowa 1993).

II. Double Jeopardy Principles.

The Fifth Amendment to the United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. This provision, referred to as the Double Jeopardy Clause, affords a defendant three basic protections: “ ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” State v. Butler, 505 N.W.2d 806, 807 (Iowa 1993) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969)).

The defendant in this case seeks protection from a second prosecution for the same offense after conviction. It is undisputed that the second and third theft trials would be prosecutions. The determinative question is whether they would constitute prosecutions for the same offense.

We have frequently determined whether two offenses charged under separate statutory provisions constitute the same offense for double jeopardy purposes. See, e.g., State v. Willard, 568 N.W.2d 813, 813 (Iowa 1997); State v. Perez, 563 N.W.2d 625, 626-27 (Iowa 1997); State v. Aguiar-Corona, 508 N.W.2d 698, 700 (Iowa 1993). In analyzing this type of double jeopardy claim, we look at the legislature’s intent and frequently resort to the Blockburger “same-elements” test under which the elements of the two offenses are compared to determine whether one is a lesser-included offense of the other. See Perez, 563 N.W.2d at 628 (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

Although the defendant relies on the “same-elements” test in arguing that double jeopardy has been violated here, that test is not applicable when the charges being compared arise under the same statutory provision. In such cases, the elements are obviously the same. Therefore, we look to cases considering when multiple prosecutions under the same statute violate double jeopardy.

Coincidentally, Blockburger ' also addressed this situation, where the offenses claimed to be identical are based on the same statutory violation. In Blockburger, the defendant was charged with violating provisions of the Harrison Narcotic Act, 26 U.S.C. § 692. Blockburger, 284 U.S. at 300, 52 S.Ct. at 180, 76 L.Ed. at 307. He was indicted on five charges and the jury returned a guilty verdict on the second, third, and fifth counts. Id. The, second count, charged a sale of ten grains of morphine on a specified day not in or from the original stamped package in violation of the act. Id. at 301, 52 S.Ct. at’ 181, 76 L.Ed. at 308. The third count charged a sale to the same person on the following day of eight grains of the drug not in or from the original stamped package. Id. The fifth count charged the latter sale as also having been made without a written order as required by the statute. Id. .

In his appeal, the defendant raised several arguments, including a claim that “the two sales charged in the second and third counts as having been made to the same person constitute a single offense.” Id. In addressing this issue, the Court stated, “[t]he sales charged in the second and third counts, although made to the same person, were distinct and separate sales made at different times.” Id. The evidence established that shortly after the delivery of the drug from the' first sale, payment was made by the purchaser for the additional quantity to be delivered on the following day. Id. Nevertheless, the Court concluded that the first sale had been consummated, and, regardless of how closely the payment for the second sale followed, the payment was the initiation of a separate and distinct sale completed by delivery. Id.

The Court rejected the defendant’s argument that delivery of the first sale and payment for the second sale within a short interval to the same purchaser constituted a single continuing offense. Id. at 30Í-02, 52 S.Ct. at 181, 76 L.Ed. at 308. The Court distinguished the transactions there from an offense, which was continuous in nature, such as cohabiting with more than one woman. Id. at 302, 52 S.Ct. at 181, 76 L.Ed. at 308 (citing Ex parte Snow, 120 U.S. 274, 7 S.Ct. 556, 30 L.Ed. 658 (1887)). The Court noted that, “[t]he Narcotic Act did not create the offense of engaging in the business of selling the forbidden drugs, but penalizes any sale made in the absence of ... the qualifying requirements.” Id. The test, stated the Court, “is whether the individual acts are prohibited, or the course óf action which they constitute. If the former, then each act is punishable 'separately .... If the latter, there can be but one penalty.” Id. (emphasis added).

Thus, Blockburger requires that the statute at issue be construed to determine the nature of the offense: whether it is accomplished by a single act, allowing for multiple charges upon repetition of the proscribed act, or whether it is of a continuous nature, such that it is the course of conduct which is punishable. We turn now to the theft crime at issue here.

III. Nature of Theft Offense.

The defendant was prosecuted under Iowa Code section 714.1(4). Section 714.1 defines the crime of theft, and subsection (4) is one alternative under which a person may be charged. This alternative states that a person commits theft when the person

[ejxercises control over stolen property, knowing such property to have been stolen, or having reasonable cause to believe that such property has been stolen, unless the person’s purpose is to promptly restore it to the owner or to deliver it to an appropriate public officer.

Iowa Code § 714.1(4).

This court has already determined that theft, as defined in section 714.1(4), is not a continuous offense having an ongoing duration, but rather the offense is completed with a single act. See State v. Hippier, 545 N.W.2d 568, 572 (Iowa 1996). The defendant attempts to distinguish this case, arguing that it did not involve a double jeopardy claim. This distinction, however, provides no basis upon which to reject the analysis in Hippier.

In Hippier, the defendant was charged with violating Iowa Code section 707.8(1) (1993), which provides that “[a] person who terminates a human pregnancy without the consent of the pregnant person during the commission of a felony or felonious assault is guilty of a class ‘B’ felony.” Id. at 569 (emphasis added). The defendant had allegedly stolen a vehicle the previous week and then was involved in an accident that resulted in injuries to a third person and the subsequent termination of her pregnancy. Id. In charging the defendant with a violation of section 707.8(1), the State argued that “exercising control over a stolen vehicle was a continuing, ongoing felonious act,” such that the felony was still occurring at the time of the accident. Id. at 570.

Relying on cases from other jurisdictions that have considered this issue in the context of a statute-of-limitations problem, we considered whether the theft statute expressly stated that theft was a continuing offense, or whether the nature of the crime compelled such a conclusion. Id. at 572. We concluded that theft was not expressly made a continuing offense in the statute and the nature of the crime did not otherwise compel a presumption that the legislature intended that the offense be a continuing one. Id.

The defendant has offered no reason to reject our analysis in Hippier other than the fact that the Hippier case did not involve a double jeopardy claim. But there is nothing in the Hippier analysis that makes it inappropriate in the present case. We are dealing here with the same fundamental issue of statutory interpretation that we faced in Hippier: did the legislature define theft as a continuing offense or as a crime that is complete with a single act? Because the issues in Hippier and here are identical, we conclude that Hippier is dispositive. The crime of exercising control over stolen property is not a continuing offense for double jeopardy purposes. Therefore, section 714.1(4) does not proscribe a course of conduct encompassing a series of acts, but rather prohibits a single act of possession of stolen property.

IV. Were the Three Charges Based on Separate Criminal Acts?

Having concluded that theft is not a continuing offense, we must now examine the charges to decide whether they involve different individual acts. Even though the charges allege the same kind of conduct, so long as they are not based on the same conduct, no double jeopardy problem is presented. See United States v. Easley, 927 F.2d 1442, 1451-52 (8th Cir.1991); see also United States v. Patterson, 20 F.3d 801, 805 (8th Cir.1994) (stating that inquiry is whether each charge requires proof of a fact that the other did not).

We dealt with a similar issue in City of Cedar Falls v. Flett, 330 N.W.2d 251 (Iowa 1983). In Flett, the defendant was convicted of twenty-three separate violations of a city ordinance making it a nuisance to store junk vehicles within city limits. 330 N.W.2d at 257. The defendant argued he was subjected to double jeopardy “because he was convicted and sentenced for twenty-three violations of the ordinance as a result of one decision not to remove his cars.” Id. In upholding the defendant’s convictions, we stated: ‘“[A] conviction and sentence on one charge is a bar to judgment upon another only if the evidence required to support a conviction on one would suffice to warrant a conviction on the other.’ ” Id. (quoting State v. Birk-estrand, 239 N.W.2d 353, 364 (Iowa 1976)). We concluded in Flett that, “[ajlthough defendant’s possession of the vehicles was a single act, the possession of each vehicle is a separate offense because each vehicle has individual defects that require separate evidence to prove each is defective within,the ordinance.” Id. (emphasis added).

We now examine the evidence the- State must have to support a conviction on.the three theft charges it filed. The State must prove that the property described in each charge was stolen. See Iowa Code § 714.1(4) (defining the crime as exercising control over “stolen property” (emphasis added)). To do so, the State must present evidence of the legal ownership and subsequent unauthorized deprivation of each article to establish its stolen nature. Evidence that the pet supplies were stolen does not establish that the Notre Dame jacket or the tires and wheels were stolen and vice versa. In addition, the stolen nature of the described property rests on separate thefts from different victims at different times and at different locations. Accordingly, the remaining theft charges require proof of facts that are different than those facts proved in the first prosecution.

In summary, the three theft charges, although based on the same kind of conduct, are not based on the same conduct. Therefore, there is no double jeopardy violation.

V. Disposition:

The trial court erred in granting the defendant’s motion to dismiss the second and third theft charges on double jeopardy grounds. Therefore, we reverse and remand for trial on these charges.

REVERSED AND REMANDED.

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


text:
    LAND O’LAKES, INC., Appellant, v. Donald Joseph HANIG, Appellee.
    No. 98-1370.
    Supreme Court of Iowa.
    April 26, 2000.
    As Amended on Denial of Rehearing June 1, 2000.
    Reconsideration Denied June 19, 2000.

      Lawrence A. Moloney of Doherty, Rumble & Butler, P.A., Minneapolis, Minnesota, and Ronald K. Noah of Noah, Smith and Schuknecht, P.L.C., Charles City, for appellant.
    Michael G. Byrne of Winston & Byrne, P.C., Mason City, for appellee.

       CARTER, J., taking no part.

   TERNUS, Justice.

The appellant, Land O’Lakes, Inc., commenced this action' to recover damages it sustained when the appellee, Donald Han-ig, failed to deliver corn to Land O’Lakes, as required by contracts between the parties. The dispute on appeal centers on the adequacy of the assurances provided by Hanig upon Land O’Lakes’ demand for reasonable assurance of performance. In a bench trial, the district court ruled that Hanig’s assurances were adequate and that Land O’Lakes, not Hanig, had breached the contracts when it cancelled the contracts based.on its dissatisfaction with the assurances of performance provided by Hanig.

Upon our review of the record, we hold there is not substantial evidence to support the trial court’s conclusion that the assurances provided by Hanig were adequate. Accordingly, we reverse the district court’s judgment and remand for a determination of the damages that Land O’Lakes is entitled to recover for Hanig’s breach of contract.

I. Background Facts and Proceedings.

This- case concerns multiple hedge-to-arrive contracts between Land O’Lakes, a grain cooperative, and Hanig, a grain producer. (We have recently discussed in detail the nature of hedge-to-arrive contracts, see Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 456 (Iowa 2000), and will not repeat that discussion here.) In early 1995, Hanig became interested in trying a multi-year pricing plan, using hedge-to-arrive (HTA) contracts. To effectuate this plan, he entered into a series of HTA contracts, twenty-three in all, calling for the delivery of 155,000 bushels of corn between December 1995 and July 1996. This quantity of grain represented Hanig’s entire grain production for a three-year period.

In December 1995 the cash price of corn was high, so Hanig decided to roll his December 1995 contracts to .December 1996. Because there was an inverse of thirty-eight cents between December 1995 and December 1996, Hanig rolled his four December 1995 contracts to March 1996 instead, resulting in .a. modest gain. Hanig subsequently made a timely delivery of 25,000 bushels of corn as' required by the March 1996 contracts.

The inverse in the market did not improve and by the spring of 1996, both farmers . and elevators were concerned about the market ramifications ‘on HTA contracts. Hanig, for example, had already sold his entire 1995 crop and would have no more grain to deliver until the 1996' harvest. Therefore, further rolling into late 1996 was inevitable. In April 1996, Hanig chose to roll his remaining contracts to July 1996.

On May 8, 1996, the cooperative sent all producers holding HTA contracts a letter asking that the producers advise the cooperative of their intention to either deliver corn under their July 1996 contracts or roll the contracts to a 1996 crop contract. The cooperative enclosed an article addressing the risks and volatility of the July-December spread or price differential. In response to this letter, Hanig met with the coop’s manager, Randy Park, to discuss Hanig’s situation. They agreed that a workable solution would be for Hanig to deliver on half the contracts in the fall of 1996 and roll the rest out to 1997.

Subsequent to this conversation the coop adopted a new policy concerning HTA contracts. Park informed Hanig of this policy on June 6, 1996, when Hanig stopped by the coop to discuss his contracts. This policy, which was subsequently sent to all producers on Juné 8, essentially provided producers with three alternatives: (1) termination of all HTA contracts, subject to payment of a cancellation charge; (2) delivery of the grain and/or rolling the contracts to a new delivery month not later than July 1997; or (3) some combination of the prior two alternatives. The letter ended with this statement: “We believe , these alternatives will meet the needs of almost all of our producers with HTAs. We encourage you to come in and visit with us as soon as possible to work out an individual resolution.” The coop asked for a response by June 19, 1996. Although Hanig was concerned that he would not be able to roll past July 1997, contrary to the parties’ earlier conversation, he acknowledged that Park did not object to any proposal made by Hanig on June 6 other than to say that Hanig could not roll forever.

• On June 18, 1996, Hanig delivered four letters to the coop in response to. the June 8 letter concerning the coop’s new policy on HTA contracts. These letters directed the coop to roll all of Hanig’s HTA contracts to December 1996. In addition, Hanig’s letters contained the following statements:

The undersigned repudiates the enforceability of all said contracts in full. The undersigned producer is acting solely to mitigate any damages in the event said contracts are ultimately shown to be enforceable.
To the extent that the hedge to arrive contracts are later deemed to be legally enforceable, the undersigned specifically reserves all his rights under the contracts between the parties, as originally negotiated and represented at the time of execution of said contracts.

Hanig asked Park to sign these letters, but Park, upon learning that Hanig had legal counsel, declined to do so and referred the matter to the coop’s attorneys.

On July 12, 1996, counsel for the coop sent a letter to Hanig informing him that his repudiation of the enforceability of the contracts gave the coop grounds for insecurity regarding Hanig’s performance under the contracts. The coop demanded adequate assurances, stating that Hanig’s signature on the modified contracts showing the December 1996 delivery dates would be considered adequate assurance of performance. Hanig was asked to come to the coop and sign the contracts on or before July 31, 1996.

A week later, on July 19, 1996, Hanig’s counsel responded to the coop’s demand for assurances. This letter stated in pertinent part:

You are correct in that Mr. Hanig has repudiated the enforceability of all of the HTA contracts listed on the June 18, 1996 letter of instructions delivered in person to Randy Park....
Given the undated notice received June 8, 1996 and your letter of July 12, 1996, which both appear inconsistent with the HTA contracts, Mr. Hanig is unable to execute any further contracts until the terms, conditions and specifications of the same are clearly spelled out, consistent with the original representations made when entering into those contracts.
If the contracts are determined to be enforceable, Mr. Hanig does intend to perform. I suggest this confirmation is all the “adequate assurance” to which you are entitled.

Hanig went on to specifically contest the contract requirement that he deliver the grain by December 31, 1996, and the coop’s adjustment of the price under the rolled contracts to reflect the spread between the old and new delivery dates. Hanig’s counsel ended the letter by reiterating that Hanig “specifically repudiates the enforceability of [the] HTA contracts,” but that Hanig’s counsel would be willing to discuss the matter further.

Although there were some subsequent discussions between the parties with respect to a settlement of their dispute, no satisfactory agreement was reached. Finally, oil July 26, 1996, the coop notified Hanig that it would not accept his proposal

(1) to deliver 60,000 bushels of the 130,000 bushels covered by the contracts at a price of $2.75 (the prices payable under the contracts varied between $2.14 and $2.67), and

(2) to cancel the balance of the contracts at no liability to Hanig. The coop further informed Hanig that it did not consider his proposal to be adequate assurance of his performance, and therefore, the coop had cancelled Hanig’s HTA contracts.

The coop subsequently filed this lawsuit alleging that Hanig had breached the contracts. Hanig responded that the coop had breached the contracts by unilaterally modifying the contracts and by cancelling the contracts. The case was tried to the court. The court found that Hanig’s June 18, 1996 letter gave the coop reasonable grounds to be insecure about Hanig’s performance. The court then concluded that Hanig’s July 19, 1996 letter, in which he reaffirmed his prior repudiation of the contracts’ enforceability, but nevertheless stated his intention to perform if the contracts were deemed enforceable, constituted adequate assurance. The court held, therefore, that the coop had breached the contracts by cancelling them after adequate assurance had been given. Accordingly, it entered judgment for Hanig.

In ruling on the coop’s post-trial motion, the court rejected the coop’s argument that Hanig’s July 19, 1996 letter continued his earlier repudiation of the contracts. The court reasoned that Hanig stated'he would perform if the contracts were determined to be enforceable and, because delivery was not required for five months, Hanig had an opportunity within that time frame to obtain a judicial determination of the contracts’ enforceability. The court noted that the coop’s cancellation of the contracts deprived Hanig of this opportunity.

The coop filed this appeal raising two issues. , First, the coop claims that the trial court erred in determining that Han-ig’s letter of July 19, 1996 provided adequate assurances of performance. Alternatively, the coop asserts that the trial court should have ruled- that Hanig repudiated the contracts in his June 18, 1996 letter and never withdrew his repudiation. Wé find it necessary to address only the first issue.

II. Scope of Review.

This breach of contract action was tried at law and therefore our review is for correction of errors of law. See Iowa R.App. P. 4; Van Oort Constr. Co. v. Nuckoll’s Concrete Serv., Inc., 599 N.W.2d 684, 689 (Iowa 1999). Whether the assurances offered by a party are adequate is normally a factual question. See Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 568 (10th Cir.1989). The trial court’s findings of fact have the effect of a special verdict and are binding if supported by substantial evidence. See Van Oort, 599 N.W.2d at 689. “Evidence is substantial for purposes of sustaining a finding of fact when a reasonable mind would accept it as adequate to reach a conclusion.” Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). "We view the evidence in a light, most favorable to. the trial court’s judgment.” Van Oort, 599 N.W.2d at 689.

As contrasted to the trial court’s factual findings, the district court’s legal conclusions and application of legal principles are not binding on the appellate court. See Hodges v. Hodges, 572 N.W.2d 549, 551 (Iowa 1997). If “the trial court has applied erroneous rules of law [that] materially affected its decision,” we must reverse on appeal. Falczynski, 533 N.W.2d at 230.

III. Did the Trial Court Err When it Concluded That Hanig’s Letter of July 19, 1996, Constituted Adequate Assurance of Performance?

The contracts at issue in this case are governed by article 2 of the Iowa Uniform Commercial Code. See Top of Iowa Coop., 608 N.W.2d at 466. “Under the U.C.C., a party to a contract who has reasonable grounds to believe that the other party will be unwilling or unable to perform his contractual obligation may require the party to provide adequate assurance of performance.” Id. at 466 (citing Iowa Code § 554.2609 (1995)). A party receiving a justified demand for assurances has a reasonable time, not exceeding thirty days, to provide assurance. See Iowa Code § 554.2609(4) (1995). A failure to provide adequate assurances within that time frame is deemed a repudiation of the contract. See id.; 1 James J. White & Robert S. Summers, Uniform Commercial Code § 6-2, at 294 (4th ed. 1995) (“A fourth type of repudiation occurs when a party fails to give adequate assurances of performance when required to do so under section 2-609(4).”); Larry T. Garvin, Adequate Assurance of Performance: Of Risk, Duress, and Cognition, 69 U. Colo. L.Rev. 71, 71 (1998) (“[I]f the demand is answered unsatisfactorily, the insecure party may hold the other in breach.”). The nature of adequate assurance is summarized in a comment to section 554.2609:

The section rests on the recognition of the fact that the essential purpose of a contract between commercial men is actual performance and they do not bargain merely for a promise, or for a promise plus the right to win a lawsuit and that a continuing sense of reliance and security that the promised performance will be forthcoming when due, is an important feature of the bargain.

Iowa Code Ann. § 554.2609, cmt. 1 (emphasis added).

We conclude that no reasonable fact finder could find that the assurance provided by Hanig was adequate under this standard. Hanig did not promise performance; he promised performance only if the contracts were determined to be enforceable. Paraphrasing the quoted comment to section 554.2609, Hanig did not promise “actual performance”; he merely offered his promise “plus the right to win a lawsuit.”

In addition, under the conditions set forth in Hanig’s July 19, 1996 letter, the coop would not be assured that performance would be forthcoming when due until Hanig obtained a judicial determination that the contracts were enforceable. It would have been a practical impossibility for such a determination to be made within the thirty days allowed by section 554.2609(4), i.e., by August 12, 1996. Consistent with the principles of law set forth above, any assurance provided beyond the thirty-day period is automatically inadequate. See Iowa Code Ann. § 554.2609, cmt. 5 (“The thirty day limit on the time to provide adequate assurance is laid down to free the question of reasonable time from uncertainty in later litigation.”).

Finally, Hanig’s assurances were inadequate for the additional reason that his performance was conditioned on a requirement — a judicial determination of enforceability — not within the terms of the contracts. Under the U.C.C., when a party states its intention not to perform “except on conditions which go beyond the contract,” the party’s statement constitutes a repudiation of the contract. Iowa Code Ann. § 554.2610, cmt. 2. That is exactly what happened here. Hanig stated unequivocally that he would not deliver the grain as .required by the contracts unless the contracts were determined to be enforceable, a condition not found in the contracts. When a party’s “assurances” constitute a repudiation, they cannot, as a matter of law, qualify as adequate assurances. See Kaiser-Francis Oil Co., 870 F.2d at 569 (holding, as a matter of law, that conditioning performance on agreement to contract modification was an inadequate. assurance); Aero Consulting Corp. v. Cessna Aircraft Co., 867 F.Supp. 1480, 1491 (D.Kan.1994) (holding, as a matter of law, that party’s refusal to perform unless other party agreed to a condition that was not a part of the contract constituted a repudiation); Louisiana Power & Light Co. v. Allegheny Ludlum Indus., Inc., 517 F.Supp. 1319, 1323 (E.D.La.1981) (holding, as a matter of law, that party’s qualified promise of performance did not constitute adequate assurance of performance); Copylease Corp. v. Memorex Corp., 403 F.Supp. 625, 631 (S.D.N.Y.1975) (holding that party’s demand that insecure party agree to modification of the ■ contract did not constitute reasonable assurance of performance). ' We conclude that the trial court erred in holding otherwise.

IV. Summary and Disposition.

The trial court erred as a matter of law in finding that Hanig’s July 19, 1996 letter constituted adequate assurance of performance. Accordingly, Hanig breached the contracts by failing to .provide adequate assurances within thirty days of the coop’s demand for such assurances. Therefore, we reverse the trial court’s judgment and remand this case for entry of judgment in favor of Land O’Lakes. Upon remand, the trial court shall determine the damages to which Land O’Lakes is entitled on the record previously made, and shall enter judgment for that amount, plus costs and interest.

REVERSED AND REMANDED.

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

      . Hanig claimed at trial that the Coop’s "demand for adequate assurance was unreasonable where those contracts [calling for December 1996 delivery] had been modified from earlier contracts executed by [Hanig].” Hanig focused on two items of claimed unilateral modification: (1) charging the spread to ■ him in the rolled contracts; and (2) the perceived restriction on future rolling. The trial court found that the parties’ course of dealing established that the spread would be reflected in the Contract price under any rolled' contracts, and that the coop had never denied Hanig any requested roll. In addition, the contracts calling for December 1996 delivery, which the coop asked Hanig to sign, did not place any restriction on rolling. In it’s ruling, the trial court held that these contracts were “valid.” Inherent in this conclusion is a rejection of Hanig’s contention that the contracts had been unilaterally modified in breach of the parties' prior agreements. In other words, if the new contracts were an unreasonable modification of the parties’ pri- or agreements, they could not logically at the same time be "valid.” We find no basis to reverse the trial court's conclusion with respect to the validity of the new contracts that Hanig was requested to sign. The court applied correct principles of law and there is substantial evidence to support its factual findings with respect to this issue.

      . This comment refers to "commercial men.” The coop argues that Hanig was a merchant so as to trigger the applicability of section 554.2609(2): "Between merchants ... the adequacy of any assurance offered shall be determined according to commercial standards.” (Emphasis added.) The trial court made no finding on whether Hanig was a merchant. See Iowa Code § 554.2104(1) (defining "merchant”). We do not address this issue because we conclude that Hanig’s assur-anees were unreasonable as a matter of law without specific reliance on any particular commercial standard or practice. Although the quoted comment 1 refers to "commercial men,” we have no doubt that the ordinary person who does not qualify as a merchant also recognizes that a grain dealer in these circumstances bargains for actual performance and not a lawsuit. See generally 1 James J. White & Robert S. Summers, Uniform Commercial Code § 6-2, at 289 (4th ed.1995) (suggesting that courts use common sense in determining whether assurances given are adequate).

      . The present situation is to be distinguished from an insecure party's ability to demand reasonable assurance in the form of performance not required by the contract. Such a demand does not constitute a repudiation of the contract. See Top of Iowa Coop., 608 N.W.2d at 460. Here, in contrast, Hanig was not'the insecure party and, therefore, had no right to demand performance beyond the contract terms.


author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. Russell WALKER, Appellant.
    No. 98-1482.
    Supreme Court of Iowa.
    April 26, 2000.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone,. County Attorney, Steve Foritano and George Karnas, Assistant County Attorneys, for appellee.
   NEUMAN, Justice.

Defendant, Russell Walker, seeks to reverse the judgment entered on his guilty plea to willful injury on the ground the conviction merged, as a matter of law, with his companion plea to the crime of voluntary manslaughter. The State counters that Walker entered knowing and voluntary pleas to two separate crimes and, therefore, merger under Iowa Code section 701.9 (1997) is not required. Under the unique facts of this case, we are convinced the State is correct. We therefore affirm.

The facts giving rise to this pointless tragedy were established during the plea proceedings. A construction crew gathered after work-to share a case of beer. Walker’s lifelong friend and former' coworker, Ed Trogden, showed up in a drunken state. Obnoxious and seemingly intent on picking a fight, Trogden urinated on Walker’s boots. Walker left rather than confront his. inebriated friend. The others, including Trogden, moved the party to the home of their boss.

Walker’s girlfriend was among those gathered at the boss’s house. Walker tried three times to reach her there by phone, but Trogden answered each time, cursing Walker before hanging up. Angered, Walker drove to the house and, encountering Trogden before he had a chance to react, punched him several times in the face. Trogden fell backwards, hitting the ground with force. While Trog-den was down, Walker — who was wearing construction boots — kicked him at least twice in the head. After the fight, Walker picked up the unconscious Trogden and, with the help of a friend, placed him in the backseat of Trogden’s pickup truck. Walker started. the engine to warm the vehicle, and urged his friends to check on Trogden. Walker then left the scene. Trogden died within the hour from injuries described in an autopsy report as “multiple cerebral cortical contusions and hemorrhages accompanied by a massive, acute subdural hematoma due to craniocerebral trauma.”

The State charged. Walker wjth first-degree murder, a class “A” felony carrying a life sentence without parole. See Iowa Code §§ 707.2, 902.1. Following plea negotiations with defense counsel, the State filed an amended and substituted , trial information charging .Walker with willful injury, in violation of Iowa’ Code section 708.4, and voluntary manslaughter, in violation of Iowa Code section 707.4. Both are class “C” felonies carrying maximum ten-year terms. At the plea hearing which followed, Walker furnished a factual basis for each charge. No motion in arrest of judgment was filed. Rejecting Walker’s request for concurrent sentencing, the district court sentenced Walker to two consecutive ten-year terms of imprisonment. • This appeal by Walker followed.

I. Scope of Review.

Defendant makes no constitutional claim that he has been punished twice for the same offense. He strictly cites error in the court’s refusal to merge the convictions in accordance with Iowa Code section 701.9. Our review, therefore, is limited to the correction of legal error, not de novo. State v. Perez, 563 N.W.2d 625, 627 (Iowa 1997).

II. Issue on Appeal.

Walker claims the court erred in failing to merge his willful injury conviction with his voluntary manslaughter conviction. His argument rests on the premise that willful injury is a lesser-included offense of voluntary manslaughter. See State v. Mapp, 585 N.W.2d 746, 749 (Iowa 1998) (holding conspiracy to commit willful injury “is necessarily included in conspiracy to commit murder”). That being so, the court was required to merge the convictions at sentencing in accordance with Iowa Code section 701.9. Id. The court’s failure to follow section 701.9, Walker contends, resulted in an illegal sentence. See State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (when lesser-included offense merges with greater offense, conviction on lesser offense is void). An illegal sentence may be urged as a ground for reversal at any time, obviating the need to challenge the error in district court in order to preserve the issue for appeal. State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995); State v. Stratton, 519 N.W.2d 403, 405 (Iowa 1994); State v. Austin, 503 N.W.2d 604, 607 (Iowa 1993).

The State counters that Walker’s merger argument rests on a faulty premise. It emphasizes that the record reveals an extended colloquy with the court, at two separate hearings, concerning the legality of the parties’ negotiated plea agreement. Defense counsel was understandably pleased with the substantial charge reduction and had no interest in upsetting it. Thus, when pressed by the court to comment on the legality of sentencing on two seemingly “merge-able” offenses, defense counsel affirmatively stated “that there was a different factual basis on the charge of Willful Injury and a different set of facts for Manslaughter.” He asked the court “to impose a sentence on each count [Walker] pled guilty to.” He also argued that concurrent, rather than consecutive, sentences would be more in keeping with the “policy” of this state “in this situation.”

The State asserts, and we are inclined to agree, that Walker’s appeal seeks to transform what was a favorable plea bargain in the district court to an even better deal on appeal. He now claims the events leading to Trogden’s death amounted to one offense, not two, and so merger applies. The district court, however, specifically found “that a factual basis exists independently for each of the two crimes to which the Defendant pleaded guilty.” In particular the court identified Walker’s initial assault on Trogden, the willful injury, during which he threw several swift punches, knocking Trogden to the ground. The court then found that, instead of stopping the fight right there, Walker’s rage so consumed him that he proceeded to kick Trogden in the head while he was down. This separate act of uncontrolled aggression, -resulting in Trogden’s death, furnished the factual basis for Walker’s plea of guilty to voluntary manslaughter. Walker conceded these findings, during the plea proceedings and has made no attempt, then or now, to set aside those pleas for lack of a factual basis.

Given this record, we are persuaded the court committed no error when it granted Walker’s invitation to sentence him on each charge. This is not a case, such as Mapp, where one assault with guns led to death of the victim and the required merger of the defendant-coconspirator’s companion charge of conspiracy to commit willful injury. Mapp, 585 N.W.2d at 748-49. Nor is this a case in which plea negotiations led to a guilty plea which, while favorable to the défendant, so lacks a factual basis as to threaten the integrity of the plea process itself. E.g., State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996).

In another factual setting the crimes, of willful injury and manslaughter may merge in accordance with Iowa Code section 701.9. But here the defendant knowingly pled to — and the record minimally supports a factual basis for — two separate crimes. Because the record establishes more- than one assault, the court was authorized to impose more than one -sentence. See State v. Smith, 573 N.W.2d 14, 19 (Iowa 1997); State v. McKettrick 480 N.W.2d 52, 56 n.2 (Iowa 1992). We therefore affirm the judgment of the district court.

AFFIRMED.

All justices concur except. McGIVERIN, C.J., who takes no part.

      . The statute states:
      No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such a verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only. Iowa Code § 701.9.