author: SANDSTROM, Justice.

text:
    2002 ND 46
    Danilo DALAN, M.D., Plaintiff and Appellant, v. PARACELSUS HEALTHCARE CORPORATION OF NORTH DAKOTA, INC., d/b/a Dakota Heartland Health Systems, Defendant and Appellee.
    No. 20010269.
    Supreme Court of North Dakota.
    March 12, 2002.

      Randolph E. Stefanson (argued) and Bruce A. Schoenwald (on brief), Stefanson, Plambeck, Foss & Fisher, Moorhead, MN, for plaintiff and appellant.
    Bernard E. Reynolds of Gunhus, Grin-nell, Klinger, Swenson & Guy, Moorhead, MN, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Danilo Dalan, a medical doctor, appealed a grant of summary judgment dismissing his claims against Dakota Heartland Health Systems for breach of contract, promissory or equitable estoppel, and unjust enrichment. Concluding Dalan has failed to raise genuine issues of material facts on required elements of his claims, we affirm the district court’s grant of summary judgment.

I

[¶ 2] Dalan is a physician, board-certified in internal medicine with specialties in allergy and immunology. He entered into a series of contracts with Dakota Heartland Health Systems (“Heartland”), now known as Paracelsus Healthcare Corporation, and its predecessors to provide medical services. In April of 2001, Dalan sued Heartland, alleging he did not receive the compensation promised to him. This dispute involves the most recent contract between the parties.

[¶ 3] In his complaint, Dalan alleged Heartland breached the contract. He also set forth claims of promissory or equitable estoppel and unjust enrichment against Heartland. Heartland asserted Dalan had been paid all of the compensation due under the contract and brought a motion for summary judgment.

[¶ 4] The district court granted Heartland’s motion, finding:

The undisputed facts ‘in the record show that [Heartland] has paid Dr. Dalan all compensation amounts due under the Agreement. As a matter of law, Dr. Dalan is not entitled to additional compensation under any theories asserted in his complaint.

[¶ 5] Dalan appeals, contending he should have been allowed to apply the doctrine of an implied covenant of good faith and fair dealing to give meaning to the Heartland contract, the representations, and promises made to him by Heartland. Dalan also asserts there were disputed factual issues regarding his claims of promissory or equitable estoppel and unjust enrichment. Dalan requests the grant of summary judgment be reversed and the matter be remanded for a trial on the merits.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 7] “Summary judgment is a procedural device for promptly and expeditiously disposing of an action without a trial if either party is entitled to a judgment as a matter of law and if no dispute exists as to either the material facts or the reasonable inferences to be drawn from undisputed facts, or resolving the factual disputes will not- ' alter the result.” Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46. The evidence presented must be viewed “in a light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence.” Ellingson v. Knudson, 498 N.W.2d 814, 817 (N.D.1993).

Although the party seeking summary judgment has the burden of showing that there is no génuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court’s attention to relevant evidence in the record by setting out the page' and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.
In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant- or why facts are relevant, let alone material, to the claim for relief.

Anderson, 2001 ND 125, ¶ 14, 630 N.W.2d 46. When a party fails to establish the existence of a factual dispute on an essential element of his claim, on which he will bear the burden of proof at trial, summary judgment is appropriate. Anderson, at ¶ 15. “Whether the district court properly granted summary judgment is a question of law subject to de novo review.” Rogstad v. Dakota Gasification Co., 2001 ND 54, ¶ 10, 623 N.W.2d 382.

Ill

[¶ 8] Dalan claims he did not receive the compensation he deserved. The contract between the parties included compensation terms, set forth in section six.

6. Payment to Physician (LESSEE): In consideration of the services to be performed by PHYSICIAN to HOSPITAL under this agreement, Hospital agrees to pay PHYSICIAN eighty-five (85%) of revenue collected for professional fees generated by Dr. Dalan in the hospital. When on-call for the Clinic, professional fees/revenues generated (either inpatient or out-patient) for such call services will be the Clinic’s (Lessor) and not be included in calculating compensation due the PHYSICIAN. PHYSICIAN will be paid $1,200 for each weekend of call coverage and $225 for each week day. These payments shall be calculated and paid monthly to the PHYSICIAN by the 10th of the month for the preceding month.

The contract provided the method to be used for any future modifications.

12. Conditions of the parties’ Obligations;
a. Any alterations, variation, modifications, or waivers provisions of this agreement shall be valid only when they have been reduced to writing, duly signed, and attached to the original of this agreement.
b. No claim for services furnished by the lessee, not specifically provided in the agreement, will be allowed by the lessor, nor shall the lessee do any work or furnish any material not covered by the agreement, unless this is approved in writing by the lessor. Such approval shall be considered to be a modification of the agreement.

The contract also contained an integration clause:

14. Entire Agreement; It is understood and agreed that the entire agreement of the parties is contained herein and that this agreement supersedes all oral agreements and negotiations between and parties relating to the subject matter hereof, as well as any previous agreements presently in effect.

An addendum was added to the contract the same day the contract was signed, and it provided, in part:

6. In addition the content of point # 6, it is agreed that terms here can be renegotiated yearly.

[¶ 9] Dalan does not dispute he was paid the amounts outlined in section six of the contract; rather, he claims he was not adequately compensated for his on-call coverage. He also contends Heartland made promises of additional compensation, but he acknowledges none of his discussions with Heartland regarding additional compensation were reduced to writing, as required by section twelve of the contract. Dalan has failed to raise an issue of material fact showing Heartland breached any of the express terms of the contract.

[¶ 10] In the alternative, Dalan argues Heartland breached an implied term of the contract. He argues that the doctrine of an implied covenant of good faith and fair dealing should be applied to his contract with Heartland.

[¶ 11] In North Dakota the doctrine of an implied covenant of good faith and fair dealing has only been applied to insurance contracts. See Fetch v. Quam, 2001 ND 48, ¶ 12, 623 N.W.2d 357 (“An insurer has a duty to act fairly and in good faith in its contractual relationship with its policyholders.”); see also Barnes v. St Joseph’s Hospital, 1999 ND 204, ¶ 10, 601 N.W.2d 587 (affirmed the dismissal of an implied covenant of good faith and fair dealing claim in connection with a commercial contract because the plaintiff failed to raise an issue of material fact that the defendant acted in bad faith); Jose v. Norwest Bank, 1999 ND 175, ¶ 14, 599 N.W.2d 293 (declined the invitation to apply an implied covenant of good faith and fair dealing into the employment context); Aaland v. Lake Region Grain Coop., 511 N.W.2d 244, 247 (N.D.1994) (declined to recognize a claim based on an implied covenant of good faith and fair dealing); Hillesland v. Federal Land Bank Ass’n, 407 N.W.2d 206, 211-15 (N.D.1987) (rejected a claim for a breach of an implied covenant of good faith and fair dealing based on an at-will employment contract).

[¶ 12] Dalan acknowledges North Dakota case law has rejected claims for a breach of an implied covenant of good faith and fair dealing based on at-will employment contracts, but he argues such a claim has not been expressly rejected when the claim is based on an employment contract for a specific duration of employment. Dalan characterizes his contract with Heartland as an employment contract for a specific duration. Heartland argues Hillesland does not apply because the contract was not an employment contract. Heartland contends Dalan was not a Heartland employee, but rather an independent contractor.

[¶ 13] We do not need to decide whether Dalan was an employee or an independent contractor, because even if a claim for the breach of an implied covenant of good faith and fair dealing were available, Dalan has failed to show how Heartland breached an implied duty of good faith and fair dealing. Barnes v. St. Joseph’s Hospital, 1999 ND 204, ¶ 10, 601 N.W.2d 587. “The duty to act in good faith ‘does not obligate a party to accept a material change in the terms of the contract or to assume obligations that vary or contradict the contract’s express provisions,’ nor does the duty of good faith ‘inject substantive terms into the parties’ contract.’ ” Id. at ¶ 14. Dalan and Heartland expressly agreed, through the addendum, that the compensation terms “c[ould] be renegotiated yearly.” Dalan alleges the addendum should be interpreted to require Heartland to increase his compensation despite the clear language of the addendum. Imposing such a duty on Heartland would contradict the express term of the contract that modifications be in writing, and that Dalan’s compensation terms could be renegotiated. It would also require Heartland to accept a material change in the terms of the agreement. Dalan has failed to show Heartland acted in bad faith.

[¶ 14] The district court properly dismissed Dalan’s breach of contract claim.

IV

[¶ 15] Dalan also contests the dismissal of the equitable claims he asserted, including promissory or equitable estoppel and unjust enrichment.

A

[¶ 16] A plaintiff alleging promissory estoppel is required to show:

(1) a promise which the promisor should reasonably expect will cause a change of position by the promisee;
(2) a substantial change in the promis-ee’s position through action or forbearance;
(8) justifiable reliance on the promise; and
(4) injustice which can only be avoided by enforcing the promise.

Peterson Mechanical, Inc. v. Nereson, 466 N.W.2d 568, 571 (N.D.1991).

[¶ 17] Dalan has not met the requirements of the second element of promissory estoppel. Dalan continued to provide services for Heartland and did not exercise his option to terminate the contract. Although Dalan’s choice to not terminate the contract could be regarded as forbearance, he has not shown a substantial change in his position through his forbearance. O’Connell v. Entertainment Enters., Inc., 317 N.W.2d 385, 390 (N.D.1982) (continuing employment does not prove the employment would have been terminated if the promises had not been made). Dalan has provided no evidence that he gave up any other opportunities to remain with Heartland. He has not shown a substantial change in his position.

[¶ 18] Dalan has failed to present facts that set forth a claim of promissory estop-pel. The district court properly dismissed Dalan’s promissory estoppel claim.

B

[¶ 19] The doctrine of equitable estoppel is set forth in section 31 — 11— 06, N.D.C.C.:

When a party, by that party’s own declaration, act, or omission, intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, that party shall not be permitted to falsify it in any litigation arising out of such declaration, act, or omission.

A plaintiff alleging equitable estoppel is required to show the defendant engaged in:

(1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are other than those which the defendant subsequently attempts to assert;
(2) the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the plaintiff; and
(3) knowledge, actual or constructive, of the real facts.

Global Acquisitions, LLC v. Broadway Park Ltd. P’ship, 2001 ND 52, ¶ 13, 623 N.W.2d 442. “Reliance on the conduct of the party against whom equitable estoppel is asserted must be reasonable, and there must be some form of affirmative deception by that party.” Id.

[¶ 20] Dalan alleges Heartland should not be allowed to deny it made promises to him regarding future compensation. He points to comments made by Louis Kauffman, Heartland’s chief executive officer, to show Dalan was promised more compensation. In his deposition, Louis Kauffman stated:

Q. Do you recall saying to Doctor Da-lan, “Dan, I know we owe you money. We’ll take care of it?”
A. I may have.
Q. Why would you say that?
A. Because at the time I may have thought we did.
Q. Why would you think that?
A. Because we were looking into his question about being paid properly with his contract and I didn’t have the final analysis done and would have said something to that effect.

[¶ 21] Viewing Kauffman’s statement in the light most favorable to Dalan, the evidence does not show Heartland made any promises to increase Dalan’s compensation. The statement merely shows Heartland was reviewing Dalan’s compensation. Dalan has not met the requirements of the first element of equitable estoppel. Global Acquisitions, LLC, 2001 ND 52, ¶ 13, 623 N.W.2d 442.

[¶ 22] Even if the statement by Kauff-man were viewed as a promise to increase Dalan’s compensation, Dalan has not set forth evidence to meet the remaining elements of an equitable estoppel claim. Global Acquisitions, LLC, 2001 ND 52, ¶ 13, 623 N.W.2d 442. He has not shown any evidence that the alleged promises made by Heartland were made with the intention to influence him; nor has he shown any affirmative deception by Heartland. Id. Dalan has not met his burden.

[¶ 23] The district court properly dismissed Dalan’s equitable estoppel claim.

C

[¶ 24] A claim for unjust enrichment does not apply when an express contract exists. First National Bank of Belfield v. Burich, 367 N.W.2d 148, 154 (N.D.1985) (error to rely on the theory of unjust enrichment when an express contract exists). Dalan and Heartland had an express contract detailing the compensation Dalan was to receive for on-call duties.

[¶ 25] The district court properly dismissed Dalan’s unjust enrichment claim.

V

[¶ 26] The district court’s judgment dismissing Dalan’s claims of breach of contract, promissory or equitable estoppel, and unjust enrichment is affirmed.

[¶ 27] VANDE WALLE, C.J., NEUMANN, KAPSNER, JJ. and HOD NY, S. J., concur..

[¶ 28] WILLIAM -F. HODNY, S.J., sitting in place of MARING, J., disqualified.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2002 ND 50
    In the Interest of J.D. Nadeem Haider, M.D., Petitioner and Appellee, v. J.D., Respondent and Appellant.
    No. 20020049.
    Supreme Court of North Dakota.
    March 12, 2002.

      Robin Huseby, State’s Attorney, Valley City, for petitioner and appellee.
    Jodie Koch Scherr, Valley City, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] J.D. appealed from an order continuing treatment and an order to treat involuntarily with medication. We affirm in part, reverse in part, and remand for a new hearing on whether a less restrictive alternative treatment is appropriate, and whether forced medication is the least restrictive form of intervention.

[¶ 2] J.D. is a twenty-four year old man who, since 1999, has lived with his uncle on a farm near Valley City, North Dakota. J.D.’s uncle grew concerned about J.D’s mental health and physical well being. This concern prompted J.D.’s uncle to call the Barnes County Sheriffs Office for assistance on January 29.

[¶ 3] J.D.’s uncle explained his concern to the Barnes County Sheriffs Deputies who responded to his call for assistance. J.D.’s uncle told the deputies J.D. refused to live in the farm house during the winter months this year, and remained, instead, in his trailer. J.D.’s uncle said he had tried to provide electricity and heat to the trailer, but J.D. physically stopped J.D.’s uncle and refused this assistance. J.D.’s uncle told the deputies J.D. would sit in either his unheated trailer or his automobile for long periods of time. J.D.’s uncle explained to the deputies that J.D.’s mental status had gone down hill and J.D. was becoming more paranoid and more distant from the family.

[¶ 4] When the deputies arrived at the farm J.D. was sitting in his automobile with the engine off. J.D. was dressed appropriately for the weather, however, wearing many layers of winter clothing. The deputies asked J.D. a few questions, but he would not answer the questions. The deputy who testified at the preliminary hearing testified J.D. seemed paranoid.

[¶ 5] The deputies decided, based on the already cold weather, the still dropping temperatures, and J.D.’s refusal to seek appropriate shelter, that he was a danger to himself. Over J.D.’s objections and despite his resistance, the deputies placed J.D. in custody and transported him to the State Hospital in Jamestown. J.D. was detained in the State Hospital as provided in N.D.C.C. § 25-03.1-25.

[¶ 6] On January 31, 2002, a preliminary hearing was conducted and after hearing evidence from one of the deputies and reading a report from the State Hospital, the district court found it was probable J.D. was a person requiring treatment. Accordingly, the district court ordered J.D. be returned to the State Hospital for fourteen days.

[¶7] On February 12, 2002, a treatment hearing was conducted by the district court. J.D.’s uncle-testified and again related those observations and concerns he had reported to the deputies on January 29. Additionally, William Pryatel, M.D., testified via telephone.

[¶ 8] Dr. Pryatel testified that J.D. resisted efforts to examine him, which made it difficult to specify exactly the nature of J.D’s condition. Nonetheless, Dr. Pryatel was able to diagnose J.D. with a psychotic disorder, but was unable to otherwise specify the nature of the condition. Also, Dr. Pryatel testified because of J.D.’s mental condition J.D. posed a threat of harm to himself, because in such a mental condition J.D. would continue to refuse heat and electricity.

[¶ 9] Further, Dr. Pryatel reported J.D. had not been taking his medication voluntarily and would only eat if he was given tasks to perform so that he would feel as though he was earning his keep.

[¶ 10] Dr. Pryatel recommended that J.D. continue to be involuntarily hospitalized and medicated. Moreover, Dr. Prya-tel testified this was the least restrictive course of treatment available to J.D., because of J.D.’s refusal to voluntarily comply with his treatment plan thus far. J.D. did not testify, nor did he call any witnesses on his behalf.

[¶ 11] The district court found J.D. had been diagnosed with a psychotic disorder, that he was a risk to himself because he refused appropriate shelter, and that he had not been compliant with his treatment orders thus far and therefore there was no less restrictive treatment option available.

[¶ 12] As a result of these findings of fact the district court concluded the statutory factors of N.D.C.C. § 25-03.1-18.1 had been satisfied by the evidence. The district court ordered J.D. be committed to the State Hospital for a period of not more than 90 days and be medicated. J.D.’s appeal is before this Court as provided in N.D.C.C. § 25-03.1-29; N.D.RApp.P. 2.1(a).

I

[¶ 13] Our review of an appeal under N.D.C.C. ch. 25-03.1 is “limited to a review of the procedures, findings, and conclusions of the lower court.” In the Interest of J.S., 1998 ND 92, ¶ 13, 578 N.W.2d 91 (quoting N.D.C.C. § 25-03.1-29). “To balance the competing interests of protecting a mentally ill person and of preserving that person’s liberty, our standards of decision require trial courts to use a clear and convincing standard of proof while we use a more probing ‘clearly erroneous’ standard of review.” In the Interest of J.S., 530 N.W.2d 331, 333 (N.D.1995). As we have explained in the past, “we will affirm an order for involuntary treatment unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.” In Interest of R.N., 513 N.W.2d 370, 371 (N.D.1994).

[¶ 14] Section 25-03.1-02(11), N.D.C.C., defines a “person requiring treatment” as:

a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property.

[¶ 15] Therefore N.D.C.C. § 25-OS. 1-02(11) creates a two-part test to determine if a person requires treatment. First, the person must be shown to have a mental illness. See N.D.C.C. § 25-03.1-02(11). Second, it must be shown that the mentally ill person, if untreated, poses a serious risk to him or herself, others, or property. See id.

[¶ 16] J.D. concedes the district court found him to be mentally ill under the first prong of the two-step process and, while not agreeing with this finding, J.D. does not contest it on appeal. Rather, J.D. asserts even if he is mentally ill he does not require treatment, because he does not pose a serious risk of harm to anything or anyone including himself.

[¶ 17] The legal meaning of the phrase “serious risk of harm” is defined by N.D.C.C. § 25-03.1-02(11) to include a likelihood of any of the following:

a. Suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care; or
d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors.

[¶ 18] Only one expert, Dr. Prya-tel, testified at the treatment hearing. Dr. Pryatel was unambiguous in his opinion; he testified that because of J.D.’s mental illness he would continue to refuse appropriate shelter and was thus a threat to himself. The only other testimony before the district court was that of J.D.’s uncle, who also testified that he was worried J.D. would harm himself by refusing heat and electricity. In fact J.D.’s uncle was so worried about J.D. that he called the Barnes County Sheriffs Office for assistance, which was the “hardest thing” he had ever had to do. The testimony of Dr. Pryatel and J.D.’s uncle supports the district court’s findings, particularly under subsection (c) of N.D.C.C. § 25-03.1-02(11).

[¶ 19] In light of the evidence before the district court, even under heightened scrutiny, the district court was not clearly erroneous in finding J.D. was a person requiring treatment.

II

[¶ 20] A patient has the right to the least restrictive conditions necessary to achieve the treatment purposes. N.D.C.C. § 25-03.1^10(2). “In some cases, a reporting doctor may reasonably conclude that less restrictive alternatives to hospitalization simply do not exist.” In the Interest of J.S., 545 N.W.2d 145, 148 (N.D.1996). Whether or not this is such a case, there is insufficient evidence on this issue. The district court reasoned J.D. should be held against his will in an in-patient treatment program because he was not cooperating with the in-patient treatment program he was in currently, and because J.D. was not voluntarily taking his medication.

[¶ 21] There was no discussion on the record, however, of what, if any, alternative forms of treatment were available. Without further evidence that less restrictive conditions were considered, as required by statute, we cannot affirm the district court’s order as the least restrictive course of treatment appropriate for J.D.

[¶22] The same is true with regard to the issue of forced medication. Section 25-03.1-18.1(3), N.D.C.C., requires certification from the treating psychiatrist and another licensed physician or psychiatrist not involved in the case that, among other things, the “prescribed medication is the least restrictive form of intervention necessary to meet the treatment needs of the patient.”

[¶ 23] As we noted in State v. Nording, 485 N.W.2d 781, 787 (N.D.1992), N.D.C.C. § 25-03.1-18.1 “is designed to safeguard a patient’s right to be free of forced medication unless the prescribed medication is necessary to effectively treat the patient, unless the medication is the least restrictive form of intervention available for the patient’s treatment, and unless the benefits of the medication outweigh its known risks to the patient.”

[¶ 24] Without further explanation, mere conclusory statements by the treating psychiatrist and other physician are not helpful in determining whether a court should authorize involuntary treatment with prescribed medications. Compare, e.g., In re B.D., 510 N.W.2d 629, 633 (N.D.1994) (discussing testimony of a psychiatrist concerning need for forced medication).

[¶ 25] Without further evidence that other forms of intervention were considered, we cannot affirm the district court’s order for medication as the least restrictive form of intervention necessary to meet J.D.’s treatment needs.

[¶ 26] Accordingly we reverse and remand for further findings on alternative forms of treatment and intervention that may be available to J.D.

[¶ 27] The order is affirmed in part and reversed and remanded in part.

[¶ 28] SANDSTROM, NEUMANN, MARING, and KAPSNER, JJ., concur.


author: SEVERSON, Circuit Judge.

text:
    2002 SD 23
    Virginia JOHNSON, Claimant and Appellee, v. POWDER RIVER TRANSPORTATION, Employer and Appellant, and Indemnity Insurance Co., Insurer and Appellant.
    Nos. 22008, 22010.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided Feb. 20, 2002.
    Rehearing Denied March 20, 2002.

      James D. Leach of Viken, Viken, Pecho-ta, Leach & Dewell, Rapid City, for appel-lee.
    Craig A. Pfeifle of Lynn, Jackson, Schultz & Lebrun, Rapid City, for appellant.
   SEVERSON, Circuit Judge.

[¶ 1.] The South Dakota Department of Labor, Division of Labor and Management (Department) determined that Virginia Johnson (Johnson) was permanently, totally disabled and entitled to compensation for life. Powder River Transportation (Powder River) appealed Department’s decision. The circuit court denied a constitutional challenge to reduction in benefits by the amount of social security benefits, upheld Department’s decision to decline to tax disbursements, and affirmed Department’s decision to award permanent disability compensation to Johnson. Both parties have appealed. We affirm.

FACTS

[¶ 2.] Virginia Johnson, a sixty-one-year-old employee of- Powder River, was performing duties as a van driver on March 16, 1998 when she slipped and fell on ice and suffered injury to her right shoulder and lower back. Johnson reported the injury to her employer and sought medical treatment. Johnson continued to work while undergoing treatment for her injuries. Prior to the incident, she had been working twelve to fifteen hours per day, seven days per week. . Because the extensive work schedule tended to aggravate her injury, her doctor limited her to five days a week, eight hours per day with a lifting restriction of twenty pounds. In compliance with the restrictions ordered by Johnson’s , doctor, Powder River limited Johnson’s work schedule.

■ [¶ 3.] Johnson’s average weekly wage at the time of her injury was $241.65 based on her pay of 18 cents per mile driven. From the date of her injury to the end of her employment with Powder River, Johnson earned' an average weekly income of approximately $146. In October 1999 Powder River lost its contract to transport railroad workers, and the hew contractor chose not to hire Johnson. Johnson has had no work since that time.

[¶ 4.] While still in the employ of Powder River, Johnson sought worker’s compensation benefits through Department. On March 8, 1999 a memorandum of payment was issued noting that Johnson’s compensation rate would be $195.

[¶ 5.] - In order to continue receiving unemployment compensation, Johnson documented businesses in the area where she applied -for work. She registered with Job Service in Hot Springs and returned at least twenty-three times between April and November 1999 attempting to find employment. She also contacted other employers in her area. Despite Johnson’s efforts to find employment, she received only two job offers. One was unacceptable because it would require relocating to eastern South Dakota. The other was unacceptable because it offered only four hours per week and Johnson was still employed by Powder River at the time and had to be available to be called out to drive.

[¶ 6.] On December 7, 1999 a hearing on the matter was held before Department. The administrative law judge determined that Johnson was permanently totally disabled and set her compensation rate at $195 per week with cost of living increases. Department found that Johnson had made an extensive job search and had been unsuccessful in her attempt to find employment. Department further found that although she was not obviously unemployable based solely on her physical condition, Johnson had made a prima facie odd-lot case considering her age, training and experience and the type of work available in her community and considering that with the cost of commuting at twenty-nine (29) cents per mile, jobs available in Hot Springs would pay less than Johnson’s compensation rate. Finally, Department held that Powder River failed to satisfy its rebuttal burden of showing that positions that Johnson might have qualified for were regularly and continuously open.

[¶ 7.] Powder River appealed challenging Department’s determination that Johnson had made a reasonable job search in support of a prima facie odd-lot case. Powder River also appealed Department’s determination that open positions were not available in light of the direct cost of commuting offset calculated at 29 cents per mile. The circuit court, applying a clearly erroneous standard, held that there was sufficient evidence to support Department’s finding that the job search was reasonable and affirmed the Department’s finding in favor of Johnson on this issue. The circuit court also held Department correctly considered and interpreted SDCL 62 — 4—52(l)(b) regarding availability of comparable work in the community in light of the cost of commuting. Since the income from available jobs would fall below the minimum wage when the cost of commuting was considered, the jobs available in Hot Springs would be financially infeasible.

[¶ 8.] Johnson filed a notice of review, challenging Department’s refusal to find the second paragraph of SDCL 62-4-7, which provides for an offset of a claimant’s disability payments once she is entitled to old-age insurance benefits under the Social Security Act, unconstitutional. Notice was given to the attorney general that the constitutionality of SDCL 62^4-7 would be challenged before the circuit court. Johnson also sought review of the Department’s refusal to tax disbursements of $648.75 against the insurer.

[¶ 9.] The circuit court held that Johnson’s challenge of the constitutionality of the statute on the grounds of due process was waived because it was not raised in Johnson’s brief to the Department. The circuit court also held that the challenge on the basis of equal protection was raised, but Johnson did not prove beyond a reasonable doubt that the statute lacked rational basis for the classification it created and therefore did not meet her burden. Therefore, the constitutional challenge to the statute was denied. Finally, the circuit court held that taxation of disbursements was within the discretion of Department and Department did not abuse its discretion in refusing to award the disbursements to Johnson.

[¶ 10.] Powder River has appealed the decision of Department and its affirmance by the circuit court. It raises two issues for appeal:

Did Department err in determining that claimant had made a reasonable job search in support of her prima facie odd-lot case?
Did Department err in determining that open and suitable occupations for Claimant would not be considered “available” to her in light of a 29 cents per mile cost of commute from her area residence to the jobsite?

[¶ 11.] Johnson has filed a notice of review on two additional issues:

May South Dakota constitutionally mandate reduction in worker’s compensation benefits based on Social Security Old Age Benefits?
Did Department abuse its discretion or fail to apply the proper law when it refused to tax disbursements against employer and insurer?

STANDARD OF REVIEW

[¶ 12.] SDCL 1-26-37 allows the aggrieved party or agency to obtain review of the final judgment of the circuit court under the South Dakota Administrative Procedure and Rules. Factual questions in administrative appeals are reviewed under a clearly erroneous standard and questions of law are reviewed de novo. Wendell v. South Dakota Dept. of Transp., 1998 SD 130 ¶ 5, 587 N.W.2d 595, 597; Belhassen v. John Morrell & Co., 2000 SD 82 ¶ 11, 613 N.W.2d 531, 535. The reviewing court is “required to give great weight to the findings and inferences made by the Department on factual questions.” Id. Mixed questions of fact and law are fully reviewable. Herr v. Dakotah, Inc., 2000 SD 90 ¶ 11, 613 N.W.2d 549, 552. This Court will make the same review of the administrative agency’s decision as the circuit court, unaided by any presumption that the circuit court’s decision was correct. Kermmoade v. Quality Inn, 2000 SD 81 ¶ 10, 612 N.W.2d 583, 586.

ISSUE ONE

[¶ 13.] Did Department err in determining that Johnson made a reasonable job search in support of her prima facie odd-lot case?

[¶ 14.] The determination of whether a person falls within the odd-lot classification is a question of fact, and this Court will not substitute its judgment for Department’s on the weight of the evidence or the credibility of the witnesses. Lends His Horse v. Myrl & Roy’s Paving, 2000 SD 146 ¶ 9, 619 N.W.2d 516, 519. In order to establish a prima facie odd-lot case, Johnson must show either obvious unemployability or that she made reasonable but unsuccessful efforts to find work. Petersen v. Hinky Dinky, 515 N.W.2d 226, 231-232 (S.D.1994); SDCL 62-4-53. Since Johnson is not obviously unemployable, she must establish that she has made a reasonable, though unsuccessful, attempt to find employment.

[¶ 15.] South Dakota has generally applied a reasonableness standard when analyzing the job search of an odd-lot claimant. Enger v. FMC, 1997 SD 70 ¶ 24, 565 N.W.2d 79, 85; Belhassen, 2000 SD 82 ¶ 20, 613 N.W.2d at 537. When determining if a claimant qualifies for odd-lot classification, courts have considered the age, training, and experience of the person seeking classification. Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995); Rank v. Lindblom, 459 N.W.2d 247, 249 (S.D.1990); Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 270 (S.D.1989). South Dakota courts have also considered the intent of the claimant, to the extent that he or she must show some motivation to become re-employed. See, Petersen v. Hinky Dinky, 515 N.W.2d at 234; Tiensvold v. Universal Transport, Inc., 464 N.W.2d 820, 823-824 (S.D.1991).

[¶ 16.] Powder River asserts that while Johnson may have conducted a job search, it was not done reasonably because she placed unwarranted limitations on her search. Department found that Johnson made a reasonable search for employment. She sought the assistance of the Job Service of South Dakota and applied for numerous positions within the realm of her training and education. It is clear that Department was not clearly erroneous in finding that Johnson conducted a reasonable job search.

[¶ 17.] Powder River suggests that the intent of Johnson when conducting the job search is a critical issue. It contends that she filed for benefits while still employed by Powder River and conducted the job search only to fulfill unemployment insurance requirements. The fact that Johnson filed for benefits while still employed with Powder River is not fatal to her claim. While a claimant may not be able to sustain the burden of proving she is unemployable in the current market while still employed, she is still entitled to file for benefits and have the court retain jurisdiction until such date as she may become unemployed. McClaflin v. John Morrell & Co., 2001 SD 86 ¶ 14-15, 631 N.W.2d 180, 185.

[¶ 18.] This Court has held that a claimant lacking motivation to become reemployed would not qualify for odd-lot classification in Petersen v. Hinky Dinky, 515 N.W.2d at 234. The present case is clearly distinguishable. In Petersen, the claimant was unmotivated to work or seek rehabilitation. Id at 233. Here, Johnson made an extensive job search that was unsuccessful, garnering only two potential positions. These were declined, one due to conflicts with present employment, and the other because it would require moving to a different town. There has been no showing that Johnson has refused to search for work or has unreasonably declined employment offers. Department found that Johnson was persistent in her efforts to find employment and that her testimony was honest, forthright, and credible.

[¶ 19.] The question of whether Johnson made a reasonable job search is a question of fact. Department determined that Johnson’s job search was sufficient and the circuit court was not clearly erroneous in finding that the record supports that decision. Therefore, the circuit court correctly determined that Johnson made a prima facie case under the odd-lot doctrine.

ISSUE TWO

[¶ 20.] Did Department err in determining that open and suitable occupations for Johnson would not be considered available to her in light of a 29 cents per mile cost of commute from her area residence to the jobsite?

[¶ 21.] When the claimant has established a prima facie case for odd-lot classification, the burden shifts to the employer to show that “some form of suitable work is regularly and continuously available to the claimant.” Tiensvold, 464 N.W.2d at 822. “While it is not required that an employer actually place a claimant in an open job position, more than the mere possibility of employment must be shown; the employer must establish that there are positions actually open and available.” Spitzack, 532 N.W.2d at 76.

[¶ 22.] The claimant will be considered permanently totally disabled if she is “unable to secure anything more than sporadic employment resulting in insubstantial income” considering her physical condition, age, training, and the type of work available in her community. SDCL 62-4-53. “Sporadic employment resulting in insubstantial income” has been defined as “employment that does not offer an employee the opportunity to work either full-time or part-time and pay wages equivalent to, or greater than, the workers’ compensation benefit rate applicable to the employee at the time of the employee’s injury.” SDCL 62-4-52(2). A claimant’s community for purposes of odd-lot classification generally includes an area within sixty road miles of her residence, unless consideration of the wages available and the cost of commuting may make it financially infeasible to work within such a distance. SDCL 62-4-62(1)©.

[¶ 23.] At issue is whether the positions listed by Powder River are financially feasible considering the cost of commuting. Expert testimony was introduced at the hearing before Department that 29 cents per mile was a reasonable mileage rate to compute the cost of commuting.

[¶ 24.] Powder River contends that considering any mileage rate as an offset to the earnings from open positions it has located was error on the part of Department. The crux of Powder River’s argument is that since people normally commute to jobs in Hot Springs from Edgemont, no resident of Edgemont should qualify for an offset for the cost of that commute.

[¶25.] This argument is not persuasive. SDCL 62-4-52(l)(b) provides that the court should consider jobs to be within the claimant’s community if they are within sixty road miles of the employee’s residence unless “consideration of the wages available within sixty road miles and the cost of commuting to the job site makes it financially infeasible to work within such a distance.” The plain meaning of the statute is clear. Department committed no error in determining that the cost of commuting should be considered when determining if Powder River had located adequate employment within Johnson’s community.

[¶ 26.] Department found that the jobs fisted by Powder River did not pay wages equal to or greater than Johnson’s compensation benefit rate when the cost of commuting was deducted. As a result, those jobs were not considered to be within her community.

[¶ 27.] Department found Johnson satisfied her burden of production and burden of persuasion and that she is entitled to total permanent disability benefits. The record supports Department’s determination and that of the circuit court.

ISSUE THREE

[¶ 28.] May South Dakota constitutionally mandate reduction in worker’s compensation benefits based on Social Security Old Age Benefits?

[¶ 29.] Johnson has challenged the constitutionality of the second paragraph of SDCL 62-4-7, which provides:

For injuries occurring on or after July 1, 1993, if an employee is entitled to compensation under this section and is also receiving old-age insurance benefits under section 202 of the Social Security Act (42 USC § 402), the compensation payable shall be a sum equal to one hundred fifty percent of the compensation payable under § 62^1-7 less the old-age insurance benefit under § 202 of the Social Security Act (42 USC, § 402). However, benefits payable by the employer may not exceed the amount payable pursuant to § 62-4-7. This section does not apply to any person who is entitled to old-age insurance benefits at the time of the injury.

[¶ 30.] Nothing in the record shows that the attorney general was provided notice of the appeal to the Supreme Court. SDCL 15-6-24(c) requires that adequate notice to the attorney general be given in any action in which the state is not a party when the constitutionality of an act of the legislature affecting the public interest is drawn in question. Johnson properly notified the attorney general’s office prior to the administrative action and the appeal to circuit court, but has failed to do so prior to her appeal to this Court. Since the attorney general would have no indication that the appeal to this Court was taking place, it could not appear on behalf of the legislature and its people if it chose to do so. Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D.1988).

[¶ 31.] Failing to give notice to the attorney general is not automatically fatal to a constitutional claim. However, we will only waive this requirement in certain circumstances.

[¶ 32.] Although an appellate court will ordinarily decline to rule on the constitutionality of a statute unless the attorney general has been notified, since the failure to give such notice does not deprive the court of jurisdiction, it may determine the question when it is a matter of considerable public importance which should be promptly resolved. 16 CJS, Constitutional Law § 86 (1984). While this is a matter of substantial importance, this is not a matter of existing emergency. Given the situation as it is presented on appeal, we do not reach the issue. The people have a right to present their arguments, and that opportunity is waiting. Sharp, 422 N.W.2d at 446.

[¶ 33.] Much like the Court in Sharp, we are faced with a matter of substantial importance, but not an existing emergency. Therefore, we need not address the constitutional issue because Johnson has not provided notice to the attorney general of the appeal to this Court.

ISSUE FOUR

[¶ 34.] Did Department abuse its discretion or fail to apply the proper law when it refused to tax disbursements against employer and insurer?

[¶ 35.] Johnson contends that since she won all issues ruled on by Department, Department is required to award her taxation of disbursements and that Department abused its discretion when it applied a legitimate dispute standard and denied taxation of disbursements. Johnson cites SDCL 62-7-15 for the proposition that taxation of disbursements in favor of the prevailing party is mandatory.

[¶ 36.] In pertinent part, SDCL 62-7-15 provides “[a]ll costs incurred in the hearing before the Department may be taxed against the losing party or an equitable apportionment made thereof by the Department according to the facts.”

[¶ 37.] Johnson’s belief that taxation of disbursements is mandatory is misplaced. We have previously addressed the taxation of costs under SDCL 62-7-15.

[¶ 38.] By the use of the term “may be taxed” in SDCL 62-7-15, the legislature indicated an intention to put costs of the administrative proceeding within the discretion of Department. “ ‘This language is clearly permissive rather than mandatory. Absent an abuse of discretion, Department’s decision on this issue must stand.’ ” Tischler v. United Parcel Service, 1996 SD 98 ¶ 66, 552 N.W.2d 597, 608 (quoting Wilcox v. City of Winner, 446 N.W.2d 772, 775 (S.D.1989)).

[¶ 39.] Johnson attempts to distinguish Tischler by stating that the case found no abuse of discretion because both parties prevailed on both issues. In Tischler, Department denied costs as both parties disputed issues, and this was not an abuse of discretion. Id.

[¶ 40.] Johnson also seeks to distinguish Wilcox on the grounds that the costs were denied to the prevailing employer, not the employee. Wilcox, 446 N.W.2d at 775. The Wilcox court noted the “longstanding public policy that worker’s compensation statutes be liberally construed in favor of injured employees.” Id. This Court in Wilcox clearly stated that taxing costs to an employee would act to discourage worker’ compensation claimants from pursuing their claims and that employers should consider defending against such claims as a cost of doing business. Id. This does not, however, imply a requirement that all employers should be taxed costs when the employee wins. In Wilcox we merely stated a preference for not taxing costs against an employee and specifically found costs to be within the discretion of Department. Wilcox, 446 N.W.2d at 775.

[¶ 41.] The Court in Tischler found no abuse of discretion in the denial of costs because “all parties disputed issues.” Tischler, 1996 SD at ¶ 67, 552 N.W.2d at 608. This is also the case in the present matter. Johnson sought permanent total disability benefits under the odd-lot doctrine and Powder River disputed this claim. Department denied taxation of disbursements because there was a legitimate dispute. Applying Tischler, it cannot be said that Department abused its discretion in denying the taxation of disbursements and the circuit court properly upheld Department’s ruling.

[¶ 42.] GILBERTSON, Chief Justice, and AMUNDSON, KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 43.] SEVERSON, Circuit Judge, for SABERS, Justice, disqualified.


author: GORS, Acting Justice.

text:
    2002 SD 26
    In the Matter of the ESTATE OF Henry SIEBRASSE, Deceased.
    No. 21968.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2002.
    Decided Feb. 20, 2002.
    Rehearing Granted March 22, 2002.

      Stanley E. Whiting, Winner, for appellant, Delbert Siebrasse.
    Craig E. Smith of Neumayr and Smith, Gettysburg, for appellee, Estate and Personal Representative, Donald Siebrasse.
   GORS, Acting Justice.

[¶ 1.] Delbert Siebrasse (Delbert) appeals the trial court’s order for complete settlement after formal probate proceedings. We reverse.

FACTS AND PROCEDURE

[¶ 2.] This is a probate dispute between two brothers. Henry Siebrasse (Father) died May 1,1999. He was survived by two sons, Donald and Delbert, and one daughter, Leola Siebrasse Hall (Leola). After a formal petition was filed, Father’s will was admitted to probate. Donald was appointed personal representative pursuant to Father’s will.

[¶ 3.] In November of 1999, the trial court held a hearing regarding the apportionment of the federal estate taxes. Delbert was present, but he was not represented by counsel. Delbert objected but the trial court concluded that Delbert did not really object because he said, “I don’t object to paying my tax....” The court ordered apportionment of the taxes and stated that Delbert would be given a chance to object to any expenses in the future.

[¶ 4.] Donald submitted an appraisal of the entire 2,720 acres of real estate involved in the probate. Delbert was to inherit approximately 800 acres. The estate’s appraiser valued Delbert’s land at $328,600. The estate’s appraiser did not consider any encumbrances on Delbert’s land.

[¶ 5.] Delbert submitted his own appraisal. Delbert’s certified appraiser valued his land more than 50% lower because of the encumbrances. Delbert requested a hearing to properly value the land he was to inherit. The estate’s attorney argued that if Delbert disagreed with the Estate’s valuation, Delbert could either sue the personal representative (Donald) or wait to object at the final accounting. The court agreed, quashed the objection to the valuation, and told Delbert he would have to renew his motion at the final accounting.

[¶ 6.] On August 11, 2000, prior to the final accounting, Delbert filed objections to the valuation and a petition for reduction of valuation of the land he was to inherit. The court quashed this petition, stating that it is “more appropriate to object to the valuation after the federal estate tax has been audited and when the final petition for distribution is presented.” Delbert was denied a hearing on the valuation of the land. At the final hearing on March 14, 2001, the trial court quashed Delbert’s objections and only addressed the final accounting.

[¶ 7.] The trial court did not hold a hearing on valuation of the land Delbert was to inherit. If Delbert had been granted a hearing on valuation of his share of the land and if he had convinced the trial court that his land was worth one half of the valuation assigned by the estate, he would have paid $9,979.87 less in state inheritance tax and his prorated share of the federal estate tax would have been roughly $47,000 less.

[¶ 8.] Delbert appeals on the following issues:

1. Whether the trial court denied Delbert due process by not holding a hearing on the valuation of Delbert’s land.
2. Whether the trial court should have subjected the residual estate to inheritance and estate taxes before apportioning the taxes among the devi-sees.
3. Whether the trial court’s award of attorney fees to the personal representative was an abuse of discretion.

STANDARD OF REVIEW

[¶ 9.] Our standard of review is well settled:

This Court reviews a trial court’s findings of fact under the clearly erroneous standard and will overturn a trial court’s conclusions of law only when the trial court erred as a matter of law. ‘The question is not whether this Court would have made the same finding that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed.’

Estate of Fountain v. Schroeder, 2001 SD 139, ¶ 6, 657 N.W.2d 27, 28 (internal citations omitted).

ANALYSIS

[¶ 10.] 1. Whether the trial court denied Delbert due process by not holding a hearing on the valuation of Delbert’s land.

[¶ 11.] The estate’s appraiser did not know of any encumbrances on the land that Delbert was to inherit. Delbert claimed that removal of the Farm Program basis on 148 acres, a Conservation Reserve Program (CRP) contract on 558 acres (with only one-half of the payment going to Delbert) and a wildlife easement on 280 acres diminished the land’s value. The estate’s appraisal was $328,600. Delbert’s appraisal was $145,000. The trial court did not hold a hearing on the disputed valuation of the land Delbert inherited. Delbert protected his record by proposing the following Findings of Fact:

9. During the probate proceedings, Delbert Siebrasse petitioned the Court to hold a hearing and determine the proper appraisal for the five (5) quarters of real estate to be inherited by Delbert. The [c]ourt declined to do this and told Delbert Siebrasse that he would have to renew his motion at the final accounting.
10. Prior to the final accounting, Delbert Siebrasse filed objections to the final accounting and requested again that the issue of the value of the land to be inherited by Delbert Siebrasse be addressed. The Personal Representative moved to quash the objections to the accounting filed by Delbert and some of those objections were quashed and Delbert Siebrasse was unable to obtain a hearing on the proper valuation of the five (5) quarters of real estate which he was to inherit before the [cjourt.

[¶ 12.] Due process applies to probate proceedings. Tulsa Collection Serv. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988). In Estate of Washburn, 1998 SD 11, 575 N.W.2d 245, beneficiaries of an estate were denied notice and an opportunity to be heard to contest an accounting at the trial court’s final hearing. On appeal the beneficiaries argued that denial of a hearing violated their right to procedural due process guaranteed by the South Dakota Constitution, Article VI § 2, and the Fifth and Fourteenth Amendments to the United States Constitution. This Court agreed stating, “[fundamental is the notion that procedural due process requires that before a person is deprived of a property right that person is entitled to notice and a meaningful opportunity to be heard.” Id. at ¶ 18, 575 N.W.2d at 249-50. While due process “requires only such procedural protections as the particular situation demands,” the beneficiaries were denied notice and a meaningful opportunity to be heard at the trial court. Id. at ¶ 19, 575 N.W.2d at 250 (citing In re Certif. of Questions (Knowles v. United States), 1996 SD 10, ¶ 79, 544 N.W.2d 183, 201).

[¶ 13.] Delbert was denied due process because he was denied a hearing on valuation. We reverse and remand for a hearing on the valuation of the land Delbert inherited and for additional appropriate proceedings if the value is changed.

[¶ 14.] 2. Whether the trial court should have subjected the residual estate to inheritance and estate taxes before apportioning the taxes among the devisees.

[¶ 15.] Henry’s will contained a variation of a standard clause directing “my executor, hereinafter named, to pay all of my just debts and funeral expenses as soon after my decease as conveniently may be.” At a hearing on November 22, 1999, the court ordered that the federal estate taxes be apportioned in accordance with SDCL 29A-3-916(b). Delbert, who appeared without counsel, objected but the court found that Delbert was not really objecting because Delbert made a general statement that he was willing to pay his fair share of the taxes.

[¶ 16.] Henry’s will devised a portion of his estate to specific persons but contained a clause disposing of the residue. Delbert argues that the federal estate taxes should come out of the residuary estate before being apportioned against the specific de-visees in the will.

[¶ 17.] According to 97 C.J.S. Wills § 1956 (2001), debts are paid first from property charged with debts by the terms of the will. Then the residual estate is subjected to debts. Next, debts are paid from general bequests which are abated pro rata. Specific bequests are the last class of property subjected to debts. See In re Estate of Kuehn, 87 S.D. 569, 576-77, 212 N.W.2d 356, 360 (1973). Prior to adoption of the Uniform Probate Code (UPC), SDCL 29-6-7 (repealed by 1995 S.D. Sess. Law ch. 167 § 96) provided for payment of debts as follows: first from property expressly appropriated by the will for payment of debts, next from property not disposed of by the will, then from the residual estate, followed by property not specifically devised and finally from all other property ratably. The UPC adopted in 1994 applies to this case, SDCL 29A-8-101(b), and contains a similar provision. The UPC employs the terminology “shares abate in the following order” in SDCL 29A-3-902. Property not disposed of by the will abates first. Then the residuary estate abates. Next property not specifically devised abates. Finally, resort can be had to property specifically devised which is abated proportionately.

[¶ 18.] Federal estate taxes are debts chargeable against the principal of an estate. SDCL 55-13-5(a). In Matter of Estate of King, 278 N.W.2d 171, 174 (S.D.1979), this Court held that a direction in the will to pay debts and taxes first shifted the burden of the federal estate taxes to the residual estate. (South Dakota probate law in 1979 was similar to the UPC provision now found in SDCL 29A-3-916(b) which provides for apportionment of estate taxes among the devisees unless the will provides otherwise.) Although the clause in the King will was more extensive, we hold that the direction to pay all debts shifts the estate tax burden first to the residual estate, which must be exhausted before the burden may be apportioned among the specific devisees.

[¶ 19.] It is not clear from the record how much the residual estate contained, but it does appear that it could approach the entire amount of the federal estate tax. We reverse and remand. On remand, the trial court should calculate the amount of the estate that passed by specific or general devise and how much remained in the residual estate. The residual estate should then be charged with the federal estate tax before any apportionment is made.

[¶ 20.] 3. Whether the trial court award of attorney fees to the personal representative was an abuse of discretion.

[¶ 21.] Donald requested attorney’s fees for defending Delbert’s motion to compel and motion to remove Donald as the Estate’s personal representative (which was Delbert’s third unsuccessful attempt to secure a valuation hearing). Delbert objected. The trial court agreed with Donald and granted the Estate $996.40 in attorney’s fees. Delbert claims that the trial court’s ruling constituted an abuse of discretion. We agree.

[¶ 22.] Pursuant to SDCL 15-17-38, a trial court may award attorney’s fees in probate proceedings. When this Court determines whether one party should be required to pay another party’s attorney’s fees, we take into consideration “the property owned by each party, their relative incomes, the liquidity of the assets, and whether either party unreasonably increased the time spent on the case.” Jopling v. Jopling, 526 N.W.2d 712, 717 (S.D.1995) (emphasis added). We will not disturb a trial court’s award of attorney’s fees absent an abuse of discretion. Rykhus v. Rykhus, 319 N.W.2d 167, 171 (S.D.1982). Here the trial court granted the attorney fees because Delbert was making a third attempt to get a hearing on his request to properly value his inheritance for tax purposes. Since the trial court’s refusal to hold a valuation hearing is reversed and remanded, the award of attorney fees is also reversed and remanded for reconsideration in light of our decision.

[¶ 23.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

      . See former SDCL 29-7-1 and 29-7-2, repealed by 1995 S.D. Sess.Law ch. 167.

      . King's will provided: "I direct my executor to pay out of the principal or income, or both, of the property coming into his possession as executor, all debts allowed in the course of administration, expenses of last illness and funeral, administration expenses and all estate, inheritance, legacy and succession taxes levied upon or in connection with any property or interest either passing under this will or treated as a part of my estate for the purpose of any such tax or subjected, for any reason, to any such tax.” King, 278 N.W.2d at 172.


author: KONENKAMP, Justice.

text:
    2002 SD 25
    AT & T CORPORATION, Appellant, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Appellee.
    No. 21906.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2001.
    Decided Feb. 20, 2002.

      Patrick G. Goetzinger, Jennifer K. Tru-cano of Gunderson, Palmer, Goodsell and Nelson, Rapid City, South Dakota, for appellant.
    Harvey M. Crow, Jr., Department of Revenue, Rapid City, South Dakota, for appellee.
   KONENKAMP, Justice.

[¶ 1.] In this appeal challenging excise and sales tax assessments, we first address the question whether gross receipts from the sale and installation of telephone switching devices are subject to contractor’s excise tax. We hold that even if the devices are not fixtures because they create no improvement to realty, their sale and installation are nonetheless subject to excise tax under the expanded reach of our revised tax laws. Second, in its sales and use tax audit, the Department of Revenue refused to accept certain tax records offered in electronic form. When the information was finally submitted on paper documents, it was refused as untimely. Because our statutes do not prohibit submissions in electronic form, we conclude that providing electronically stored data can be sufficient to comply with tax audit requirements. We affirm in part, reverse in part, and remand for a recalculation of the tax assessment.

A.

Background

[¶ 2.] Through its subsidiaries, AT & T Corporation holds both sales tax and contractor’s excise tax licenses in South Dakota. AT & T manufactures, sells, installs, and services a telecommunications switching device called “5ESS.” The South Dakota Department of Revenue conducted a tax audit of AT & T’s transactions for the period of January 1,1993 through January 1, 1997. The audit began in 1996, and, after several extensions granted at AT & T’s request, ended in August 1997.

[¶ 3.] AT & T claimed that a substantial number of its transactions were nontaxable resales and exempt government sales. To support these exemptions, AT & T offered some documentation in hard copy and other data in electronic form. Not all the information the auditor requested was timely furnished, at least not in a form required by the auditor. AT & T submitted no further information until August 1999, when the auditor was deposed. One supporting record was not submitted until the administrative hearing. For the auditor to have recommended certain tax exemptions, all needed information had to be in hand by the end of the audit. Lacking this information or, at least, lacking it in the form of hard copy, the auditor denied the full range of exemptions AT & T claimed.

[¶ 4.] On January 22, 1999, the Department issued a certificate of assessment for sales and use tax and interest of $383,384.39 and contractors’ excise tax and interest of $323,265.35. AT & T appealed, contesting the entire excise tax assessment and $314,266.08 of the sales and use tax assessment. Following a hearing before an administrative law judge (ALJ), the assessments were upheld.

[¶ 5.] AT & T appealed to the circuit court. In a bench ruling, the court concluded that the 5ESS devices were not fixtures and reversed the assessment for excise tax, but affirmed the remainder of the assessments. The court then directed the parties to submit proposed findings of fact and conclusions of law. After reviewing these submissions, the court rescinded its earlier ruling. It decided that even if these devices were not fixtures, the Legislature had amended the rules on excise taxation to include the gross receipts of contractors who performed work in certain industries. The court thus affirmed the entire assessment. AT & T appeals.

B.

Contractor’s Excise Tax under SDCL 10-46A

[¶ 6.] AT & T contends that the sale and installation of its 5ESS equipment is not subject to excise tax because these devices create no improvement to realty. Relying on cases such as Brink Electric Construction Company v. State Department of Revenue, AT & T points out that although this equipment must be installed by its own technicians in climate-controlled communication rooms on racks bolted down for support, the devices are readily removable and easily transferred to other locations. 472 N.W.2d 493, 498 (S.D.1991). In AT & T’s view, because these devices cannot be designated as fixtures, their installation cannot constitute the improvement of realty, and thus no excise tax can be assessed.

[¶ 7.] Two years after Brink, the excise tax statutes were amended. Our Legislature evidently wanted to simplify classification for excise tax purposes. If we read SDCL 10-46A-1 by itself, it might still appear that excise tax is imposed only on “prime contractors engaged in realty improvement contracts[.]” However, SDCL 10-46A-2, as amended in 1993, provides: “Prime contractors and subcontractors subject to the tax imposed by § 10-46A-1 include without limitation those enumerated in the Standard Industrial Classification Manual of 1987 [SIC Manual] ... construction (division c).” Reinforcing the extended reach of the tax, SDCL 10-46A-2.2 defines a prime contractor as “a person entering into a realty improvement contract or a contract for construction services as enumerated in division c of the Standard Industrial Classification Manual, 1987....”

[¶ 8.] Whenever practicable, we adhere to the ordinary meaning of statutory language. SDCL 2-14-1. Our duty is to construe laws on the same subject compatibly, rendering them harmonious and workable where possible. Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 8, 620 N.W.2d 198, 201. Taken together, SDCL 10-46A-1, SDCL 10-46A-2, and 10-46A-2.2 embrace the activities to be taxed. Thus, the Legislature intended excise taxes to apply not just to “prime contractors engaged in realty improvement contracts,” but also to those who “contract for construction services as enumerated in division c of the Standard Industrial Classification Manual.” SDCL 10-46A-1 and 10-46A-2.2. This interpretation is supported by the following passage from 10-46A-2.2: “If a contractor engages in services not specifically listed in division c of the [SIC] Manual, 1987, then the services must entail the construction, budding, installation, or repair of a fixture to realty before the gross receipts are subject to the tax imposed by § 10-46A-1.” With this provision, it is clear that the tax applies to certain industry contracts as well as to contracts for realty improvements.

[¶ 9.] To summarize, SDCL 10-46A-2 declares that excise tax shall be levied on all contractors, prime and sub-, enumerated in division c (construction) of the SIC Manual. The tax also applies under SDCL 10-46A-2.2 to any contractor not enumerated in division c, whose services entail the construction, building, installation, or repair of a fixture to realty. Therefore, to decide whether excise tax applies, we ask two questions: first, does the contractor’s enterprise fall under division c of the SIC? If so, it is subject to the tax. If not, we ask, second, is the contractor engaged in construction, building, installation, or repair of a fixture to realty? If so, it is, again, subject to the tax. If not, then no excise tax applies.

[¶ 10.] It remains, then, to decide first whether AT & T’s activity here falls under division c of the SIC Manual. If it does, there is no need to decide whether the work also constitutes an improvement to realty. AT & T had been filing excise tax returns and paying contractor’s excise tax on its labor charges for installation. Nonetheless, the Department assessed excise tax on the gross receipts of the entire transaction, equipment and labor, classifying both sales and installation under the SIC Manual, division c, § 1731 — “Electrical Work,” which includes “telecommunications equipment installation — contractors” and “telephone and telephone equipment installation — contractors.” The ALJ deemed this classification a “critical fact.” On this point, the circuit court likewise reasoned that because AT & T is a prime contractor selling and installing telecommunications equipment, it renders a construction service listed in division c.

[¶ 11.] The SIC Manual classifies business entities by the type of economic activity they perform. SIC Manual at 11. These classifications are based on the “primary” or “predominant” activity of the subject industries. Id. at 15. The activity in which a particular service industry is primarily engaged is determined by the value of the receipts or revenues generated by the various activities of the business. Id. at 16. The activity generating the greatest relative share of “value added” is the business’s primary activity. Id. at 15.

[¶ 12.] As the introductory material of the SIC Manual explains, division c “includes establishments primarily engaged in construction,” and

[establishments primarily engaged in the distribution and construction or installation of equipment often present classification problems. Since value added is not available for distinguishing the relative importance of sales versus installation or construction activities, payroll or employment may be used as measures yielding approximately the same results.
On this basis, separate establishments primarily engaged in the sale and installation of the following illustrative types of structures or integral parts of structures, generally site-assembled, are classified in construction rather than in trade: a. Steel work on bridges or buildings; b. Elevators and escalators; c. Sprinkler systems; d. Central air-conditioning and heating equipment; e. Communications equipment; and f. Insulation materials.
On the other hand, establishments primarily engaged in the sale and installation of the following illustrative types of preassembled equipment are classified in trade rather than in construction: a. Major household appliances, such as refrigerators, dishwashers, clothes washers and dryers, stoves and ranges; and b. Partitions for banks, stores, and restaurants.

SIC Manual at 54 (emphasis added).

[¶ 13.] Are 5ESS devices more like structures or integral parts of structures, generally site-assembled, or are they more like preassembled appliances? If the former, then AT & T’s activities are primarily construction or installation; if the latter, then its activities are primarily trade or sales. 5ESS equipment is manufactured off-site and transported to the customer’s location for installation. These units must be installed to exacting standards by AT & T technicians. They are bolted down on concrete floors to provide stability and to comply with OSHA requirements. These devices are continuously updated so that the telecommunications provider can remain competitive. Components in the 5ESS include “circuit packs,” devices similar to memory or processor cards. When more or less switching capacity is needed, these circuit packs can be added or removed and installed elsewhere. Only AT & T technicians perform these services.

[¶ 14.] Helpful, but not dispositive, to our analysis is the SIC Manual’s illustration that the sale and installation of “communications equipment” falls under the construction category. But AT & T contends that the proper SIC classification here is under division d, “Manufacturing.” SIC Manual, division d, at 67. In this category are manufacturers of “electric computer systems.” See § 3571, SIC Manual. The 5ESS devices perform computer functions, AT & T argues, and thus they fall under the manufacturing classification.

[¶ 15.] As the SIC Manual attests, classifying this activity is difficult and the more so here considering the nature of AT & T’s contract with its customers. Through its general procurement agreement, AT & T furnishes not only manufactured, delivered, and installed equipment, but a host of attendant services as well. These services include configuring, engineering, maintaining, upgrading, warranting, and removing the equipment. And if the customer sells this equipment to another telephone provider, the contract provides for the dismantling and transportation of it to the new location. All these services are provided by AT & T as part of its contract.

[¶ 16.] Like the ALJ and the circuit court, we are left with little more than the bare SIC classification as basis for decision. In deciding this classification, we cannot use the underlying methodology of the SIC Manual because we have no monetary breakdown to determine the predominate revenue-generating activity here. We cannot distinguish the relative importance of manufacture and sales versus installation and related contractual services, all encompassed in a single contractual arrangement. Nor can we apply payroll or employment figures as a gauge to achieve an equivalent measure. Such information is not in the record.

[¶ 17.] In the end, which classification this activity falls under is a finding of fact, and the ALJ, as the fact finder, found that AT & T’s activities in selling and installing 5ESS equipment were more properly classified as construction than as manufacturing. We cannot overturn fact findings unless they are clearly erroneous in view of the entire evidence in the record. SDCL 1-26-36. Although we acknowledge the difficulty in classification, no argument can be mounted on the record that the ALJ’s findings are clearly erroneous. Since AT & T’s activities fall under division c of the SIC Manual, gross receipts from the sale and installation of 5ESS devices are subject to contractor’s excise tax.

C.

Timely Offer of Sales Tax Documents for Audit

[¶ 18.] South Dakota law obliges taxpayers to cooperate with the Department of Revenue in an audit. In particular, SDCL 10-59-3 requires that records, books, and documents must be prepared for presentation to the auditor. Taxpayers must present all their “documents evidencing reduction, deduction, or exemption of tax[.]” Id. However, this language does not require documents to be in any specific form. Id.; see also In re Sales and Use Tax Liability of Pam Oil, Inc., 459 N.W.2d 251 passim (SD 1990). On the other hand, records not presented within the time frames of SDCL 10-59-3 and 10-59-7 need not be considered either by the auditor or by the Secretary of Revenue. Pam Oil, 459 N.W.2d at 257.

[¶ 19.] According to the record, AT & T did timely offer to submit at least some of the required information in electronic rather than paper form. Certain customer transactions were archived in electronic form only. The Department’s auditor conceded that the untimely submitted paper documents, some of which were offered during the audit in electronic form, were relevant and reliable and would have been accepted to reduce the assessment if they had been presented in paper form before the audit ended.

[¶ 20.] Nothing in our law prohibits submitting computer-stored information as documentary evidence. In principle, auditors should accept electronic submissions, if data accuracy can be validated and the information is retrievable when the auditor needs it. We think it unreasonable, in this electronic, computer-driven age, to require a telecommunications company, such as AT & T, to produce paper copies of all data that the company ordinarily archives only in electronic form. We remand to the Department to examine AT & T’s electronic submissions that were timely offered and to adjust, as appropriate, AT & T’s tax assessment with respect to the transactions in question.

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

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, and AMUNDSON, Justices, and GORS, Acting Justice, concur.

      . Our standard of review in administrative appeals is governed by SDCL 1-26-37. See Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228. Tax statutes are construed liberally in favor of the taxpayer, as are ambiguities in those statutes. Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981).

      . SL 1993, ch. 101: "An Act to revise which construction services are subject to contractor's excise tax.”

      . Excise tax is computed on the total contract price. SDCL 10-46A-3. Besides added excise tax, the assessment on the 5ESS contracts included additional use tax for the fair market value of materials, engineering fees, and transportation fees.

      . AT & T contests the sales and use tax assessment in three categories of transactions: sales to AT & T Credit Corporation; sales to Ells-worth Air Force Base and other federal government agencies; and sales to Anixter, a reseller.

      . As to timely submission, we distinguish two circumstances: (1) data submitted (or offered) timely in electronic form and then resubmitted, late, in paper form; (2) data newly submitted, late, in paper form, i.e., not preceded by timely offer of the same data in electronic form. The first type should have been accepted by the Department, but the Department need not have accepted the second. AT & T's argument that failure to accept the second type was a violation of due process is without merit.


author: PER CURIAM.

text:
    2002 SD 24
    Patricia M. DIVICH, Plaintiff and Appellant, v. Richard Allen DIVICH, Defendant and Appellee.
    No. 21918.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2002.
    Decided Feb. 20, 2002.

      Rebecca A. Porter, Rapid City, South Dakota, for plaintiff and appellant.
    Elizabeth M. Frederick, Rapid City, South Dakota, for defendant and appellee.
   PER CURIAM.

[¶ 1.] Patricia M. Paul appeals from an order granting her former husband, Richard Divich, relief from a judgment and decree of divorce. We reverse and remand.

FACTS

[¶ 2.] Patricia and Richard were married in 1960 and divorced in 1988. As part of the divorce proceedings, the parties entered into a stipulation and property settlement agreement later incorporated into the divorce decree. Richard was employed as a teacher in the Rapid City School System and Paragraph VI of the agreement attempted to provide for the division of Richard’s retirement fund administered by the South Dakota Retirement System. Paragraph VI provided:

A. [Patricia] shall have a vested interest in [Richard’s] retirement program under the South Dakota Retirement System. [Patricia’s] interest shall be defined as:
1. Fifty percent (50%) of the benefit multiplied by the number of years during the marriage in which contributions to the program were made and divided by the total number of years in which contributions were made to the program.
2. [Patricia] shall be entitled to this division of the benefits whenever [Richard] should draw on his benefits. More specifically, should [Richard] liquidate the account prior to retirement, [Patricia’s] share would be determined as above and distributed directly to her at the time of liquidation. If on the other hand [Richard] continues the account until he commences to draw retirement benefits therefrom, [Patricia’s] share of the benefits shall be determined as above and be paid to her with the same frequency as the benefit received by [Richard].
8. That [Richard] shall maintain [Patricia’s] status as survivor benefit on the existing retirement plan according to the terms thereof which will provide the greatest benefit to her in the event of his death.

[¶ 3.] As he was preparing to retire in March 2000, Richard filed a motion for relief from these provisions of the property-settlement agreement and divorce decree pursuant to SDCL 15 — 6—60(b)(6). As grounds for the motion, Richard alleged the settlement agreement did not reflect the parties’ true intention as to the retirement fund and did not equitably divide the fund. As a remedy, Richard sought an equitable division of the retirement fund in the form of a lump sum payout to Patricia.

[¶ 4.] A hearing was held on the motion for relief in January 2001. During the hearing, the trial court heard extensive evidence and expert testimony from both parties on the meaning of the retirement provisions in the parties’ property settlement agreement. At the close of the hearing, the trial court entered oral findings of fact and conclusions of law that were subsequently adapted as written findings and conclusions.

[¶ 5.] The trial court found the retirement provisions of the parties’ property settlement agreement to be ambiguous. As a result, the trial court found that there was never any agreement between the parties on the division of the retirement fund. The trial court further determined that it would be “overreaching and inequitable” to grant Patricia a lifetime benefit from Richard’s retirement account. Accordingly, the trial court awarded Patricia a lump sum payout in the amount of $59,000 plus post-judgment interest until paid in full.

[¶ 6.] The $59,000 payout figure was derived from the refund value of Richard’s retirement account at the time of his retirement, ie., $172,183.40. The refund value was based upon the total contributions made to the retirement account by Richard and his employer during the duration of Richard’s employment. Pursuant to the formula contained in subparagraph A1 of the retirement clause of the property settlement agreement, the trial court multiplied the refund value ($172,183.40) by 50% and multiplied that result by the number of years during the marriage in which contributions were made to the retirement account (ie. 26 years). The trial court then divided that result by the total number of years in which contributions were made to the retirement account (ie., 38 years). This yielded a figure of $58,904.85 which the trial court rounded up to an even $59,000 and awarded to Patricia. Patricia appeals.

ISSUE

[¶ 7.] Did the trial court abuse its discretion in granting Richard’s motion for relief from judgment?

[¶ 8.] Patricia argues that the trial court abused its discretion in granting Richard’s motion for relief from the parties’ judgment and decree of divorce. We agree.

“Relief under SDCL 15 — 6—60(b) is granted only upon a showing of exceptional circumstances.” “The purpose of Rule 60(b) is to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscious that justice be done in light of all the facts.”
Any decision to grant or deny such relief “rests within the sound discretion of the trial court and will not be disturbed on appeal except for abuse.”

Pesicka v. Pesicka, 2000 SD 137, ¶¶ 17-18, 618 N.W.2d 725, 728 (citations omitted).

An abuse of discretion is “ ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” This Court will review the matter to determine “ ‘whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached the conclusion.’ ”

Barnaud v. Belle Fourche Irr. Dist., 2000 SD 57, ¶ 23, 609 N.W.2d 779, 784 (citations omitted). . .

[¶ 9.] The trial court granted Richard’s motion for relief from judgment on the basis of an ambiguity it perceived in the stipulation and property settlement agreement incorporated in the divorce decree. “ ‘Contractual stipulations in divorce proceedings are governed by the law of contracts.’ ” Pesicka, 2000 SD 137 at ¶ 6, 618 N.W.2d at 726 (quoting Houser v. Houser, 535 N.W.2d 882, 884 (S.D.1995)). “ ‘Whether the language of a contract is ambiguous is ... a question of law.’ ” Id. (quoting Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 151 (S.D.1986)). This Court reviews questions of law de novo with no deference given to the trial court. State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 16.

[¶ 10.] Rules for resolving whether ambiguity exists in a contract are set forth in Pesicka:

“A contract is ambiguous when application of rules of interpretation leave a genuine .uncertainty as to which of two or more meanings is correct.” [Alverson v. Northwestern Nat. Cas. Co.,] 1997 SD 9, ¶ 8, 559 N.W.2d at 235 (citations omitted).
“In determining the proper interpretation of a contract the court must seek to ascertain and give effect to the intentions of the parties.” Singpiel v. Morris, 1998 SD 86, ¶ 10, 582 N.W.2d 715, 718. The intention of the parties is determined by “looking] to the language the parties used.” Id. “If that intention is clearly manifested by the language of the [Stipulation and Agreement], it is the duty of this court to enforce it.” In Re Estate of Stevenson, 2000 SD 24, ¶ 14, 605 N.W.2d 818, 821.
In determining [the existence of] ambiguity we have stated:
A contract is not rendered ambiguous simply because the parties do not agree on its' proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.
Singpiel, 1998 SD 86, ¶ 16, 582 N.W.2d at 719 (citations omitted).

Pesicka, 2000 SD 137 at ¶¶ 8-10, 618 N.W.2d at 727.

[¶ 11.] Applying these standards here, we hold that the trial court did err as a matter of law in finding ambiguity in the parties’ stipulation and property settlement agreement. The argument at the hearing on the motion for relief from judgment was that the terms “benefit” and “benefits” in the retirement provisions of the settlement agreement were ambiguous. After some convoluted testimony on this issue from an attorney with the South Dakota Retirement System, from Patricia’s original attorney who drafted the agreement, from a local Rapid City attorney with expertise in drafting retirement clauses in property settlement agreements and from Richard himself, the trial court agreed with Richard’s claims of ambiguity finding: “As to the instant matter, the word ‘benefit’ is not described within the stipulation, nor is it defined by law within this realm[.]”

[¶ 12.] The trial court erred in its finding. The word “benefit” has a plain meaning: “A payment made or an entitlement available in accordance with a wage agreement!!]” See e.g. The American Heritage College Dictionary, 127 (3rd ed. 1997). The word “benefits” also has an ascribed meaning in the provisions of law on the South Dakota Retirement System: “the amounts paid to a member, or spouse and family, or beneficiary as a result of the provisions of this chapter[.]” SDCL 3-12-47(11). A review of SDCL ch. 3-12 reveals two typical ways that members are paid amounts from the system: first, a member terminating his public service is entitled to withdraw his accumulated contributions from the system including his employer’s contributions (see SDCL 3-12-76; 3-12-47(2)); second, a member who retires in the system may claim his retirement benefits in the form of a monthly payment (see SDCL 3-12-112). Even the attorney for the Retirement System did not dispute this view of “benefits” when he testified that, “Benefit to us at the system means any kind of payout, be it a lump sum payout, disability sum, or retirement income, or a lump sum payout to beneficiaries after a member has died[.]”

[¶ 13.] Applying this meaning of “benefits” to the parties’ stipulation and property settlement agreement yields no ambiguity in the provisions on the division of Richard’s retirement fund. The agreement clearly provides that if Richard liquidates his account prior to retirement, Patricia’s share should be distributed to her at the time of liquidation according to the formula set forth in subparagraph A1 of the settlement agreement. In any event, by the time of the trial court proceedings, Richard had already retired and the lump sum distribution formula was no longer relevant. Insofar as calculation of Patricia’s share of Richard’s monthly benefit, the agreement provides that her share should be calculated according to the formula in subparagraph Al and that the benefits should be paid “with the same frequency as the benefit received by [Richard].” At the time of the trial court proceedings, Richard’s monthly retirement benefit was $3,071.84. Fifty percent of that amount is $1,535.92. Multiplying that amount by the number of years during the marriage in which contributions were made to the retirement account (ie., 26 years) and dividing that result by the total number of years in which contributions were made (ie., 38 years), yields a monthly benefit amount for Patricia of $1,050. That is the monthly amount the trial court should have awarded to Patricia and it erred in determining otherwise.

[¶ 14.] Having reached this result on the basis of Patricia’s first issue, we find it unnecessary to address her remaining substantive issues.

ATTORNEY’S FEES

[¶ 15.] By motion and affidavit, Patricia sought a trial court award of $4,151.24 in attorney’s fees she incurred in defense of Richard’s motion for relief from judgment. The trial court denied the motion ruling that each party should bear their own costs, fees and expenses. Patricia argues the denial was an abuse of discretion. In view of our reversal on the merits of the trial court’s order and judgment, we also reverse the trial court’s denial of Patricia’s motion for attorney’s fees and remand the issue to the trial court for re-determination in light of our holding above.

[¶ 16.] Reversed and remanded.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, participating.

      . SDCL 15 — 6—60(b)(6) provides:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

      (6) Any other reason justifying relief from the operation of the judgment.
      The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken.

      . The confusion in this testimony demonstrates the danger in taking evidence on the meaning of contract terms that are otherwise plain, clear and unambiguous.