author: NEUMANN, Justice.

text:
    2001 ND 135
    STATE of North Dakota, Plaintiff and Appellee, v. Joseph KELLY, Defendant and Appellant.
    No. 20000293.
    Supreme Court of North Dakota.
    July 20, 2001.

      Thomas E. Merrick, Jamestown, ND, for defendant and appellant.
    Leo A. Ryan, Assistant State’s Attorney, Jamestown, ND, for plaintiff and appellee.
   NEUMANN, Justice.

[¶ 1] Joseph Kelly appealed from the trial court’s judgment of conviction entered upon a jury verdict finding him guilty of assault. We affirm.

I

[¶ 2] Joseph Kelly, an inmate at the James River Correctional Center, was involved in an altercation with a fellow inmate. He was removed from the general inmate population, and a disciplinary proceeding was conducted four days later. The disciplinary committee recommended thirty days of disciplinary detention with credit for time served, restitution to the state for medical costs associated with treating the victim inmate, and a referral to the state’s attorney’s office for possible criminal charges. The warden approved the committee’s recommendations.

[¶ 3] A criminal complaint was filed charging Kelly with assault in violation of N.D.C.C. § 12.1-17-01.1(1), a class A misdemeanor. At a pretrial conference, Kelly entered a not guilty plea and raised the affirmative defense of once in jeopardy under N.D.C.C. § 29-16-01(3).

[¶4] Another inmate gave a written statement describing the altercation as witnessed by him. The inmate testified for the State at trial, and the State offered the inmate’s written statement into evidence. Kelly objected to its admission under N.D.R.Ev. 801 on the grounds it was hearsay. The trial court overruled the objection and admitted the exhibit. At the close of the evidence, the court determined the prison disciplinary proceedings did not constitute jeopardy, as a matter of law. Thus, the court did not submit the issue of former jeopardy to the jury.

[¶ 5] The jury returned a guilty verdict. The trial court entered a judgment of conviction.

[¶ 6] On appeal, Kelly argues the trial court erred in refusing to submit the question of former jeopardy to the jury and in allowing the unsworn written statement of a witness into evidence.

II

[¶ 7] Kelly argues that whether he had previously been punished for the assault was a question of fact and was required to be decided by the jury. Under N.D.C.C. § 29-16-01(3), an issue of fact arises upon a plea of once in jeopardy. Issues of fact must be tried by a jury. N.D.C.C. § 29-16-02. Under Rule 31(e)(2), N.D.R.Crim. P., “When a defendant interposes the defense of having been formerly convicted or acquitted for the same offense or an offense necessarily included therein, or of having been once in jeopardy, and evidence thereof is given at trial, the jury, if it so finds, shall declare that fact in its verdict.”

[¶ 8] The explanatory note following Rule 31 says subdivision (e) was added to aid the court in deciding factual issues. “A determination of factual issues in the specific instances provided in this subdivision is deemed to be within the province of the jury. Because it is the court that determines the issue of law, the scope of the jury is not exceeded.” Rule 31, N.D.R.Crim.P., Explanatory Note. The rule allows evidence of double jeopardy to be presented to the trial court and, if an issue of fact is presented, then to the jury for its determination. City of Fargo v. Hector, 534 N.W.2d 821, 823 (N.D.1995). The rule requires the trial court to submit a special verdict form to the jury, but only if the double jeopardy issue includes a question of fact. Id.

[¶ 9] The trial court ruled, as a matter of law, double jeopardy does not apply here. We, therefore, review the legal merits of Kelly’s double jeopardy claim. See id.

[¶ 10] Kelly asserts his conviction, following the prison disciplinary proceedings based on the same conduct, violates the double jeopardy clause.

[¶ 11] The double jeopardy clause, found in the Fifth Amendment of the United States Constitution, protects against successive prosecutions and punishments for the same criminal offense. State v. Foley, 2000 ND 91, ¶ 6, 610 N.W.2d 49. Our state constitution also commands protection against double jeopardy. N.D. Const. art. I, § 12. We use the same interpretation of punishment for purposes of double jeopardy analysis under North Dakota statutory and constitutional law and federal constitutional law. State v. Jacobson, 545 N.W.2d 152, 153 (N.D.1996). The double jeopardy clause protects against three types of violations: prosecuting a defendant again for the same conduct following an acquittal; prosecuting a defendant for the same crime after conviction; and subjecting a defendant to multiple criminal punishments for the same conduct. State v. Foster, 484 N.W.2d 113, 115 (N.D.1992). Kelly argues the criminal charge against him involved the third type of double jeopardy violation.

[¶ 12] In State v. Zimmerman, 539 N.W.2d 49, 55-56 (N.D.1995), we stated a remedial administrative sanction, as opposed to a punitive or deterrent one, does not constitute a basis for a double jeopardy claim. Zimmerman involved a criminal prosecution for driving under the influence, following an administrative proceeding to suspend Zimmerman’s driver’s license. Id. at 50. In Zimmerman, we concluded that while “defendants may view the outcomes of both the criminal and administrative proceedings as punishments for the same offense ...., the criminal and administrative proceedings do not constitute double jeopardy because the administrative action serves the remedial goal of protecting the public from impaired drivers, and the suspension of the license is not greatly disproportionate to the remedial goal.” Id.

[¶ 13] Thus, we must determine whether the proceedings against Kelly at the James River Correctional Center were criminal or civil in nature. When administrative and criminal proceedings involve the same conduct, the issue is whether the administrative proceeding is deemed a criminal or civil proceeding for double jeopardy purposes. State v. Stewart, 1999 ND 154, ¶ 13, 598 N.W.2d 773 (citing Hudson v. United States, 522 U.S. 93, 107, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). This is initially a question of statutory construction, i.e., whether the Legislative Assembly intended the disciplinary control of inmates to be criminal or civil in nature. Stewart, 1999 ND 154, 1114, 598 N.W.2d 773.

[¶ 14] Section 12-47-11, N.D.C.C., gives the charge, custody, and control of inmates to the warden. The warden is authorized to make rules and prescribe penalties for violations of the rules by the inmates. N.D.C.C. § 12-47-12. Kelly complains that while he was in detention, “he was denied access to recreation facilities, mail and phone, was segregated from other prisoners, and was under lights twenty-four hours a day.” At oral argument, Kelly conceded, however, that the use of recreation facilities and the telephone, interaction with other prisoners, receiving mail, and having lights turned out during parts of the day are privileges. In Zimmerman, we stated:

Revocation of a privilege is not ordinarily considered punishment. As the United States Supreme Court has observed, “revocation of a privilege voluntarily granted” is a type of remedial sanction “which is characteristically free of the punitive criminal element.” Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922 (1938) (citing deportation and disbarment as examples).

539 N.W.2d at 52-53. Thus, inmate disciplinary proceedings and the resulting consequences are civil in nature.

[¶ 15] Kelly argues the statutory scheme is so punitive in purpose and effect as to transform what was intended as a civil remedy into a criminal penalty.

[¶ 16] Even in those cases in which the legislature indicates an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect that it transforms what was clearly intended as a civil remedy into a criminal penalty. Stewart, 1999 ND 154, ¶ 14, 598 N.W.2d 773. In making this determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), usually provide useful guideposts. Stewart, at ¶ 14. These factors include whether: (1) the sanction involves an affirmative disability or restraint; (2) it has historically been regarded as a punishment; (3) it comes into play only on a finding of scienter; (4) its operation will promote the traditional aims of punishment — retribution and deterrence; (5) the behavior to which it applies is already a crime; (6) an alternative purpose to which it may rationally be connected is assignable for it; and (7) it appears excessive in relation to the alternative purpose assigned. Id. at ¶ 14.

[¶ 17] However, the Kennedy factors are merely guideposts and are not necessarily dispositive. United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). We agree with the court in United States v. Mayes, 158 F.3d 1215, 1224 (11th Cir.1998) that the Kennedy factors merit less significance in cases arising in a prison context. The court in Mayes stated:

In this unique setting, we must take into account the fact that a prison’s remedial and punitive interests are inextricably related. As the Second Circuit observed, “Punitive interests and remedial interests ... are nowhere so tightly intertwined as in the prison setting, where the government’s remedial interest is to maintain order and to prevent violent altercations among a population of criminals” and where “remedial concerns require ‘punishing’ individuals for violent or other disruptive conduct.” United States v. Hernandez-Fundora, 58 F.3d 802, 806, 807 (2d. Cir.1995).

Mayes, 158 F.3d at 1224.

[¶ 18] The judgments of prison authorities in determining what is necessary to preserve order and discipline merit considerable deference, and we refrain from hindering institutional administration. We find the rationale of the court in United States v. Newby, 11 F.3d 1143, 1146 (3d Cir.1993) persuasive:

We do not believe that the Double Jeopardy Clause was ever intended to inhibit prison discipline.... If a prison disciplinary sanction bars subsequent criminal prosecution, the prison authorities will be-forced to choose between instituting a disciplinary proceeding or awaiting a criminal prosecution. The process of conducting a criminal investigation and prosecution may take considerable time. The difficulties and delay that a criminal prosecution entails would leave the prisoners who violated the prison rules without a prompt resolution of charges and hinder prison administration and discipline.

[¶ 19] We conclude the statutes and regulations authorizing the prison disciplinary sanctions imposed against Kelly are not so punitive as to override the intent to create remedial administrative penalties for inmate misconduct.

Ill

[¶ 20] Kelly argues the trial court erred in admitting the unsworn written statement of the inmate who witnessed the altercation into evidence. Kelly asserted both to the trial court and on appeal that the unsworn written statement is hearsay.

[¶ 21] A trial court has broad discretion over evidentiary matters, and we will not overturn a trial court’s decision to admit or exclude evidence unless the court abuses that discretion. State v. Erickstad, 2000 ND 202, ¶34, 620 N.W.2d 136. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or capricious manner or when it misinterprets or misapplies the law. Id. at ¶ 34.

[¶ 22] Generally, hearsay evidence is inadmissible. N.D.R.Ev. 802. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.D.R.Ev. 801(c). A statement that is not offered to prove the truth of the matter asserted is not hearsay. State v. Carlson, 1997 ND 7, ¶ 6, 559 N.W.2d 802.

[¶ 23] A prior inconsistent statement may be used to impeach a witness’s testimony. N.D.R.Ev. 613; State v. Burke, 2000 ND 25, ¶ 30, 606 N.W.2d 108. However, a prior inconsistent statement may not be used substantively in a criminal case as direct evidence of the facts contained in the statement unless the prior statement was made under oath. N.D.R.Ev. 801(d)(1)(I); State v. Demery, 331 N.W.2d 7, 12-13 (N.D.1983).

[¶ 24] In its brief, the State concedes the statement should not have been admitted for substantive purposes. At oral argument, the State asserted the statement was offered not as direct evidence, but to show the witness’s reluctance to testify.

[¶ 25] Arguably, the witness’s trial testimony was inconsistent with his written statement. However, at trial, the prosecution did not attempt to impeach the witness with his statement. In fact, during the examination of the witness after the court admitted the statement into evidence, the prosecution failed to mention the statement. Likewise, the prosecution did not mention the statement in its closing statement. Thus, the record does not support that the statement was admissible under either N.D.R.Ev. 613 or N.D.R.Ev. 801(d)(1)(I). Accordingly, the trial court erred in admitting the statement into evidence.

[¶ 26] When a trial court errs in admitting evidence, wé must then decide whether the error was so prejudicial that a defendant’s substantial rights were affected and a different decision would have resulted without the error. City of Fargo v. Erickson, 1999 ND 145, ¶ 13, 598 N.W.2d 787. Under N.D.R.Crim.P. 52(a), “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” See, e.g., State v. Messner, 1998 ND 151, ¶24, 583 N.W.2d 109 (noting erroneously admitted evidence that is cumulative to other properly admitted evidence is harmless error because it is not prejudicial and does not affect the substantial rights of a party). The note to N.D.R.Crim.P. 52 explains: “To determine whether error affecting substantial rights of the defendant has been committed, the entire record must be considered and the probable effect of the error determined in the light of all the evidence.” Erroneously admitted evidence that is cumulative to other properly admitted evidence is not prejudicial, does not affect substantial rights of the parties, and accordingly, is harmless error. State v. Leinen, 1999 ND 138, ¶ 17, 598 N.W.2d 102.

[¶27] The written statement of the witness was cumulative to other more direct evidence offered at trial. The victim testified that Kelly hit and kicked him. Other witnesses testified to seeing Kelly hit and kick the victim-. Kelly himself testified he hit and kicked the victim. Several witnesses, including a doctor and a nurse, testified as to the extent of the victim’s injuries. The victim testified about Kelly’s temper and reputation. Thus, the substance of the written statement was cumulative to other testimony, and the erroneous admission of the statement was harmless error.

IV

[¶ 28] Kelly also argued that admission of an out-of-court statement without limiting instructions can be reversible error, the statement contained inadmissible opinion evidence, and the statement contained improper character evidence.

[¶29] There is no indication in the record that Kelly requested a limiting instruction. Kelly did not object to the statement under N.D.R.Ev. 602, relating to opinion evidence. Nor did Kelly object to the statement under N.D.R.Ev.' 405, relating to character evidence. We do not consider arguments raised for the first time on appeal. State v. Torgerson, 2000 ND 105, ¶ 6, 611 N.W.2d 182.

V

[¶ 30] The trial court did not err in determining, as a matter of law, that the prison disciplinary proceedings did not constitute former jeopardy and in refusing to submit the former jeopardy issue to the jury.' Although the trial court erred in admitting an unsworn written statement into evidence, the error was harmless. We affirm.

[¶ 31] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, .CAROL RONNING KAPSNER, DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: GILBERTSON, Justice.

license: Public Domain

text:
    2001 SD 87
    WESTFIELD INSURANCE COMPANY, INC., Plaintiff and Appellee, v. Melissa Beth ROWE, Personal Representative of the ESTATE OF Rita GALLANT, Deceased; and David Gallant, Personal Representative of the Estate of Robert Gallant, Deceased, Defendants and Appellants.
    No. 21729.
    Supreme Court of South Dakota.
    Considered on Briefs May 29, 2001.
    Decided July 3, 2001.

      Jennifer K. Trucano of Gunderson, Palmer, Goodsell & Nelson Rapid City, SD, Attorney for plaintiff and appellee.
    Robert L. Morris of Quinn, Eiesland, Day and Barker Belle Fourche, SD, Attorneys for defendants and appellants.
   GILBERTSON, Justice.

[¶ 1.] At the time of their deaths, Robert and Rita Gallant (Gallants) were insured through Westfield Insurance Company (Westfield). Melissa Rowe and David Gallant (Rowe), as personal representatives of the Gallant estates, collected $750,000 from the tortfeasor’s liability carrier Great West Casualty Company (Great West). Rowe then sought underinsured motorist benefits from the Gallants’ policy. Westfield denied those benefits and commenced this declaratory judgment action. The circuit court granted summary judgment to Westfield, from which Rowe has appealed. We affirm the circuit court’s decision.

FACTS AND PROCEDURE

[¶ 2.] Gallants were residents of Rapid City, South Dakota. Their vehicles were insured by Westfield. On December 21, 1998, while traveling in Arizona, Gallants were involved in a traffic accident when their motor home was hit by a tractor-trailer. Both died as a result of injuries sustained during the accident. The truck driver was employed by J.M. Carpenter, Inc., which was insured by Great West.

[¶ 3.] Rowe received $144,660.69 from Westfield to cover the property damage sustained in the accident. Pursuant to the policy language, Westfield requested reimbursement if Rowe received payment from Great West. Shortly after the accident, Great West paid Rowe the policy limits of $750,000 in exchange for a release of its insureds. Westfield was informed of, and agreed to, this release. Rowe then submitted a claim to Westfield for underin-sured motorist (UIM) benefits under Gallants’ policy. The UIM policy limit is $500,000 for “any one auto accident.” Rather than differentiating between “per-person” and “per-accident” limitations, this “single limit” policy limits coverage to $500,000 for any one accident. Westfield denied UIM benefits and instituted this declaratory action to determine the parties’ rights. The circuit court granted summary judgment to Westfield, finding the “difference in limits” standard in SDCL 58-11-9.5 precluded Rowe from recovering benefits. The circuit court also found Westfield was entitled to reimbursément of the $144,066.69 it previously paid Rowe for property damage. On appeal, Rowe raises two issues:

1. Whether the “difference in limits” standard in SDCL 58-11-9.5, as applied to the Westfield policy, precludes coverage in situations involving multiple insureds.
2. Whether Westfield is entitled to sub-rogation.

STANDARD OF REVIEW

[¶ 4.] As the parties do not allege any dispute as to material facts, on review of the circuit court’s judgment we need only determine if the law was correctly applied. Estate of Juhnke v. Marquardt, 2001 SD 26, 115, 623 N.W.2d 731, 732. We will affirm summary judgment if it is correct for any reason. Id. The circuit court’s interpretation of applicable statutes is given no deference under our de novo standard of review. Maryott v. First Nat’l Bank of Eden, 2001 SD 43, ¶ 17, 624 N.W.2d 96, 102. Interpretation of insurance policies is likewise a question of law, reviewed de novo. Sawyer v. Farm Bureau Mut. Ins. Co., 2000 SD 144, ¶ 13, 619 N.W.2d 644, 648.

ANALYSIS AND DECISION

[¶ 5.] 1. Whether the “difference in limits” standard in SDCL 58-11-9.5, as applied to the Westfield policy, precludes coverage in situations involving multiple insureds.

[¶ 6.] Rowe argues she is entitled to UIM benefits under the policy. Under her theory, there are two claims being made against Westfield, one by Robert’s estate, one by Rita’s. Collectively, the two estates received $750,000, leaving $375,000 to each estate. According to Rowe, the estates are “underinsured” because the amount received by each estate is less than the limits on the Westfield policy. Under Rowe’s theory, each estate is entitled to $125,000 in UIM benefits from Westfield ($500,000 less $375,000 yields $125,000).

[¶ 7.] Rowe claims her theory is supported by the reasoning of Austin Mut. Ins. Co. v. King, 29 F.3d 385 (8th Cir.1994) (interpreting South Dakota law). In that case, a vehicle driven by King was hit, causing serious injury to the six occupants of the King vehicle. Each occupant of the King vehicle made a claim against the other driver’s liability insurance carrier. Those claims were settled for the per-accident limit of $100,000, which was split six ways. The occupants then filed claims under King’s UIM policy, issued by Austin Mutual. That policy was limited to $50,000 per-person, and $100,000 per-accident. Austin Mutual filed a declaratory judgment action in federal district court and was granted summary judgment based on policy language and SDCL 58-11-9.5, because the aggregate amounts paid to the occupants equaled the limits of the Austin Mutual policy. That decision was reversed by the Eighth Circuit Court of Appeals, which held that the amount each claimant received from the tortfeasor should be compared to the $50,000 per-person limit in the Austin Mutual policy, rather than the $100,000 per-accident limit. Id. at 389. The court based its decision largely on language in the policy pursuant to which Austin Mutual’s liability was “subject to this limit for each person.” (emphasis added). Id. at 388. Because each claimant had received less than the $50,000 per-person limit, each was entitled to UIM benefits up to the per accident limit. Rowe urges this Court to adopt the same reasoning.

[¶ 8.] Our determination must begin with the relevant statutory authority. SDCL 58-11-9.5 provides:

Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon. Coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.

This statute has been referred to as a “difference of the limits statute.” Nickerson v. American States Ins., 2000 SD 121, ¶ 10, 616 N.W.2d 468, 470 (citing Farmland Ins. Co. v. Heitmann, 498 N.W.2d 620, 625 (S.D.1993)). Under this statutory language, we merely compare the limits of the UIM coverage with the amount paid by the liability insurer. When the amount recovered equals or exceeds the limits of UIM coverage, no UIM benefits are payable. See Friesz v. Farm & City Ins., 2000 SD 152, ¶ 11, 619 N.W.2d 677, 680; Nickerson, supra; Great West Cas. Co. v. Hovaldt, 1999 SD-160, ¶ 11, 603 N.W.2d 198, 201; Heitmann, supra.

[¶ 9.] However, neither SDCL 58-11-9.5 nor our prior case law controls the disposition of a case, such as this one, where more than one named insured or “party” would be entitled to recovery under the policy. The statute provides that coverage is limited to the UIM coverage limits “of the party recovering.” This language anticipates the situation where more than one party is entitled to recover under the policy, and implies that the “difference of limits” standard applies individually to each party entitled to recover. Both Robert and Rita were listed as named insureds under this policy. Therefore, each could be entitled to recover under the provisions of the policy, including UIM coverage, and the difference of the limits statute would apply to Robert and Rita individually. Our previous UIM decisions involved single claimants attempting to, in essence, “stack” policies. Such attempts were clearly prohibited by SDCL 58-11-9.5 See Friesz, Nickerson, Hovaldt, and Heitmann, supra. Here, however, the estates of Robert and Rita are both named insureds entitled to recover under the policy. The policies are not being “stacked,” rather they stand side-by-side. Therefore, SDCL 58-11-9.5 by itself does not preclude Rowe’s claims. Nevertheless, this does not resolve the issue, as the effect of the statute on the issue depends on the language of the policy.

[¶ 10.] The provisions of SDCL 58-11-9.5 provide that an insurance company’s duty to pay UIM benefits is “[s]ubject to the terms and conditions of such underin-sured motorist coverage.... ” Therefore, we must examine the terms and conditions of the Westfield policy. The relevant and dispositive provision reads as follows:

The limit of liability shown in the Declarations for Coverage J is our maximum limit of liability for all damage resulting from any one-auto accident. This is the most we will pay regardless of the number of:
a. Insureds;
b. claims made;
c. vehicles or premiums shown in the Declarations; or
d. vehicles involved in the accident.
However, the limit of liability shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible.

By the terms of the policy, Westfield limits its total liability to $500,000 per accident “regardless of the number of insureds [or] claims made....” In contrast, the policy in Austin Mutual provided a maximum limit of $100,000. However, the Eighth Circuit Court of Appeals placed great weight upon the fact that under the terms of the policy, coverage was “ ‘subject to this limit for each person,’ rather than ‘subject to this limit for each accident.’ ” 29 F.3d at 388 (emphasis in original). For that reason, the court examined each UIM claim individually. Id. at 389. Here the policy clearly limits Westfield’s liability to $500,000 for each accident. The policy language at issue mandates a different result in this case.

[¶ 11.] The Westfield policy is more similar to that examined in Union Ins. Co. v. Houtz, 883 P.2d 1057 (Colo.1994). In that case, two insureds, Houtz and Ether-idge, were injured in a traffic accident. Houtz recovered $127,500 from the tortfea-sor’s liability carrier and Etheridge received $112,500, for a total of $240,000. They filed a claim under Houtz’ Union policy for UIM benefits. Houtz’ policy limits were $100,000 per person, $300,000 per accident. The insureds sought $172,500 for Houtz ($300,000 minus $127,500), and $187,500 for Etheridge ($300,000 minus $112,5000). Union claimed Houtz and Etheridge were only entitled to $60,000 ($300,000 minus $240,000). Houtz’ policy contained the following provision: “[ejxcept with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or ‘suit’ is brought. ” Id. at 1061— 62 (emphasis in original). The Limit of Insurance provided:

Regardless of the number of covered “autos,” “insureds,” premiums paid, claims made or vehicles involved in the “accident,” the most we will pay for all damages resulting from any one “accident” is the least of the following:
a. The LIMIT OF INSURANCE for UNINSURED MOTORISTS COVERAGE shown in the Declarations [$100,000/$300,000].
b. The difference between the limit of this insurance and all amounts paid to an “insured” by of for anyone legally liable for damages resulting from “bodily injury”....

Id. at 1060. As noted by the court, coverage under the policy applied separately “except with respect to the Limit of Insurance. The corollary to this language is that the limit of liability does not apply separately to each injured insured, but applies to the accident.” Id. at 1062 (emphasis in original). Because the UIM policy limits applied to the accident and not the individual insured, Union was allowed to offset all monies received by the insureds involved in the accident ($240,000) and the insureds were only entitled to $60,000 in UIM benefits. Id. at 1063; See Nickerson, 2000 SD 121,. ¶ 12, 616 N.W.2d at 471 (noting that “all monies received from the tortfeasor” are deducted from the UIM policy limits).

[¶ 12.] Like the policy in Houtz, the Westfield policy limits clearly apply to the accident. In addition, under the terms of its UIM coverage, Westfield is entitled to an offset of “all sums paid ... by or on behalf of persons or organizations who may be legally responsible,” regardless of the number of insureds or claims made. Rowe received a total of $750,000 from the party legally responsible for the accident. The limit of liability under the Westfield policy is $500,000. Therefore, the estates are not “underinsured” under the policy and Rowe is not entitled to UIM benefits.

[¶ 13.] 2. Whether Westfield is entitled to subrogation.

[¶ 14.] Westfield paid Rowe $144,660.69 to cover property damage from the accident. At that time, Westfield requested reimbursement if Rowe received any payments from the tortfeasor. After Rowe received the $750,000 settlement from Great West, Westfield requested sub-rogation for the amount previously paid. Rowe argues that Westfield is not entitled to subrogation because they have not been made whole, as the damages suffered exceeded the $750,000 settlement.

[¶ 15.] We recognized in Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶ 12, 562 N.W.2d 117, 121, that subrogation rights may arise independent of the common law “made whole” doctrine. In Jul-son, the insurance policy specifically provided the right of subrogation, without any requirement that the insured be made whole. Id. Likewise, Westfield’s policy provides:

If we make a payment under this policy and:

a. The person to or for whom payment was made has a right to recover damages from another, we shall be subrogated to that right ...
b. The person to or for whom payment is made recovers damages from another, that person shall: (1) hold in trust for us the proceeds of the recovery and (2) reimburse us to the extent of our payment.

Rowe can point to no language in the policy or statutory authority which restricts this right of subrogation to instances where the insured has been made whole. Therefore, Westfield is entitled to reimbursement of the $144,660.69 it paid to Rowe.

[¶ 16.] We affirm the trial court on both issues.

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

      .Rowe actually argues there are 13 claims being submitted for UIM benefits, one for each beneficiary of Robert and Rita's estates. However, the beneficiaries of the estates are not the beneficiaries of the Westfield policy at issue, only the two estates are beneficiaries under the policy. Therefore, only the estates can claim UIM benefits under the policy; we will treat Rowe’s argument accordingly.

      . The policy provides that an ''[u]nderinsured motor vehicle means a land motor vehicle or trailer of any type to which a liability bond or policy applies at the time of the accident but its limit for bodily injury is less than the limit of liability for this coverage.”

      . Total payments to the claimants were limited to the per-accident limit of $100,000.

      . Coverage J under the policy is Underin-sured Motorist Coverage. The limit of liability shown in the Declarations in $500,000.


author: AMUNDSON, Justice.

text:
    2001 SD 86
    Robert L. McCLAFLIN, Claimant and Appellee, v. JOHN MORRELL & CO., Employer, Self-Insurer and Appellant.
    No. 21588.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2001.
    Decided July 3, 2001.

      Ron J. Volesky of Volesky and Schaeffer Huron, SD, Attorneys for claimant and appellee.
    Michael S. McKnight, Lisa Hansen Mar-so of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD, Attorneys for employer, self-insurer and appellant.
   AMUNDSON, Justice.

[¶ 1.] Robert L. McClaflin (Claimant) was awarded odd-lot benefits under the Workers Compensation Act. John Morrell (Employer) appeals that decision. We affirm in part and reverse and remand in part.

FACTS

[¶ 2.] In 1972, Claimant began working for Employer at its Kansas City location. During the next ten years, Claimant’s job included working in a number of positions, including cutting and running a scribe saw, the bone line, and utility. In 1982, Claimant relocated to Employer’s Sioux Falls location. There, he performed a variety of tasks such as cutting bologna and tails, and utility.

[¶ 3.] In 1995, Claimant sought medical treatment for complaints related to his upper extremities. He was diagnosed as suffering from carpal tunnel, a work related injury, and subsequently had surgery to relieve his pain. After surgery, Claimant went through a rehabilitation program and returned to work in November of 1996. His post-surgery positions included the knife room, trash collection, equipment cleaning, and his current position in the coatroom. His duties in the coatroom involve handing laundered coats to other employees and light clean up. His current coatroom position, approved by his treating physician, involves Claimant working 8 to 9 hours per day, 5 to 6 days per week, and is paid $10.00 per hour.

[¶4.] On October 27, 1997, Claimant petitioned the Department of Labor (Department) for permanent total disability and Cozine benefits. Four doctors, including those on behalf of Claimant, opined that Claimant was capable of working. A vocational expert opined that Claimant was not employable, despite Claimant’s current position at Employer. Department found that, due to his carpal tunnel, Claimant was entitled to both Cozine and odd-lot benefits. Because Department also found that Claimant was currently employed, Department retained jurisdiction over the odd-lot claim suspending payment of such benefits. Employer appealed.

[¶ 5.] The circuit court reversed Department as to Department’s finding that Claimant was “obviously unemployable” due to his “continuous and debilitating pain.” The circuit court found that Claimant failed to meet the requirements to be considered “obviously unemployable.” Nevertheless, the court affirmed the award of odd-lot benefits on the basis that Claimant was “obviously unemployable” because he was “not employable in the competitive market.” The court also affirmed the suspension of benefits due to Claimant’s current position. Employer raises two issues:

1) Whether a Claimant may receive permanent total disability benefits where he has shown that he is not employable in the competitive market.
2) Whether Employer satisfied its burden of showing suitable work is available to Claimant.

ISSUE 1

[¶ 6.] Whether a Claimant may receive permanent total disability benefits where he has shown that he is not employable in the competitive market.

[¶ 7.] To qualify for odd-lot worker’s compensation benefits, a claimant must show that he or she suffers a temporary or permanent “total disability.” Our definition of “total disability” has been stated thusly:

A person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.

Shepherd v. Moorman Mfg., 467 N.W.2d 916, 918 (S.D.1991); Tiensvold v. Universal Transport, Inc., 464 N.W.2d 820, 822 (S.D.1991); Barkdull v. Homestake Mining Co., 317 N.W.2d 417, 418 (S.D.1982). Under the odd-lot doctrine, the ultimate burden of persuasion remains with the claimant to make a prima facie showing that his physical impairment, mental capacity, education, training and age place him in the odd-lot category. If the claimant can make this showing, the burden shifts to the employer to show that some suitable work is regularly and continuously available to the claimant. Shepherd, supra; Tiensvold, supra.

[¶ 8.] We have recognized two avenues in which a claimant may pursue in making out the prima facie showing necessary to fall under the odd-lot category. First, if the claimant is “obviously unemployable,” then the burden of production shifts to the employer to show that some suitable employment within claimant’s limitations is actually available in the community. Shepherd, 467 N.W.2d at 918; Tiensvold, 464 N.W.2d at 823. A claimant may show “obvious unemployability” by: 1) showing that his “physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category,” or 2) “persuading the trier of fact that he is in the kind of continuous, severe and debilitating pain which he claims.” Shepherd, supra, at 918-19.

[¶ 9.] Second, if “ ‘the claimant’s medical impairment is so limited or specialized in nature that he is not obviously unemployable or regulated. to the odd-lot category,’ then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has made [] ‘reasonable efforts’ to find work” and was unsuccessful. Id. If the claimant makes a prima facie showing based on the second avenue of recovery, the burden shifts to the employer to show that “some form of suitable work is regularly and continuously available to the claimant.” Id. (citing Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 270 (S.D.1989)). Even though the burden of production may shift to the employer, however, the ultimate burden of persuasion remains with the claimant. Shepherd, supra, at 918.

[¶ 10.] Department found, based on the testimony of Claimant and his treating physicians, that Claimant was not “obviously unemployable by proving he is in continuous, severe and debilitating pain.” Department also found that Claimant did not show that he made “reasonable efforts to find work,” but was unsuccessful. Department, however, did find that he demonstrated he was obviously unemployable based on his “physical condition, coupled with his education, training and age.” Thus, he made a prima facie showing that he was obviously unemployable.

[¶ 11.] This finding was rejected by the circuit court. The circuit court, however, affirmed Department’s ultimate finding that Claimant was obviously unemployable because there was evidence that Claimant is “not employable in the competitive market.” Under our workers’ compensation jurisprudence, we have never allowed recovery based on this test employed by the circuit court. We decline to adopt such an extension.

[¶ 12.] The circuit court, relying on Claimant’s vocational expert, found that Claimant’s coatroom position was “favored work” and that it was not a “competitive job” because of the high number of breaks Claimant had to take while performing his duties. The circuit court relied on this Court’s earlier decisions in Tiensvold and Shepherd as authority to award odd-lot benefits based on a claimant’s inability to be employable in the competitive market. The circuit court’s reliance on these cases, however, is misplaced.

[¶ 13.] It is true that in our decision in Tiensvold we articulated in dicta that “ ‘when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive market’ the burden shifts to the employer.” 464 N.W.2d at 823. It cannot be said that we adopted that standard as a new avenue of recovery. The Tiensvold case involved a claimant that based his odd-lot claim on his “continuous and debilitating pain.” He failed to meet his burden. In reaching our conclusion, this Court did not reach the issue of whether a claimant could fall under a “competitive market” standard. Thus, this Court has yet to approve this standard and decline to do so today.

[¶ 14.] Under the facts presented, however, this Court is not yet willing to dismiss Claimant’s claim for odd-lot benefits. Although Claimant is not in a position of “favored work,” his current position in the coatroom allows Employer to shield itself from liability under our workers’ compensation laws. As it stands, Claimant cannot meet his initial burden because he is currently employed by Employer. As we are mindful that Employer could now fire Claimant without cause because South Dakota is an “at-will” jurisdiction, we direct the circuit court to retain jurisdiction over this matter should Claimant no longer work for Employer. If Claimant can show, once no longer employed by Employer, that he is obviously unemployable and Employer cannot meet its corresponding burden, then the circuit court should instruct Employer to pay Claimant odd-lot benefits.

[¶ 15.] This Court is also mindful of SDCL 62-7-35, the two-year statute of limitations for workers compensation. Due to Claimant’s current coatroom position, however, under the specific facts of this ease, it is premature for any odd-lot determination; thus the time for the statute of limitations or failure to prosecute has not commenced. Although presented in a different posture, this Court on occasion has allowed a workers compensation case to be reopened due to a change in Claimant’s condition. See e.g., Sopko v. C & R Transfer Co., Inc., 1998 SD 8, 575 N.W.2d 225; Whitney v. AGSCO Dakota, 453 N.W.2d 847 (S.D.1990). Under our well established precedent, we reiterate the notion that workers’ compensation statutes should be construed liberally in favor of injured employees. Mills v. Spink Elec. Co-op., 442 N.W.2d 243, 246 (S.D.1989); Wilcox v. City of Winner, 446 N.W.2d 772, 775 (S.D.1989). Thus, this Court should allow Claimant to show that if his position is terminated by Employer, his change in condition requires further examination without regard to time limitations.

[¶ 16.] Likewise, other courts have also retained jurisdiction over similar matters. See Horton v. Garrett Freightlines Inc., 106 Idaho 895, 684 P.2d 297 (1984) (Commission retained jurisdiction for future determination of permanent disability); Lopez v. New York City Hous. Auth., 71 A.D.2d 750, 419 N.Y.S.2d 244 (1979) (Board has broad powers of continuing jurisdiction over closed cases, including right to modify a decision in such a way that it reaches a different result on the same record); Brooks v. Duncan, 96 Idaho 579, 532 P.2d 921 (1975) (limitations period applies only to final awards, and did not apply in case in which no evaluation of residual partial permanent disability had been made at the time of the hearing, and the Board had reserved jurisdiction); Williams v. Safeway Stores, 525 P.2d 1087 (Alaska 1974) (Board has power to retain jurisdiction over case, obviating the claimant’s further action to avoid time limit); Palmeri v. Riggs Sargent, Inc., 147 Ind.App. 430, 261 N.E.2d 887 (1970) (adjudication concerned temporary total disability and did not adjudicate the claimant’s permanent partial disability; under these circumstances, time limit does not bar petition for adjudication of permanent partial impairment); Boden v. City of Hialeah, 132 So.2d 160 (Fla.1961) (found that limitation did not bar additional claim for permanent partial disability); Pratt v. Central Upholstery Co. Inc., 252 N.C. 716, 115 S.E.2d 27 (1960) (Commission has authority to retain jurisdiction to make further adjustments pending final award; limitations statute is inapplicable if there has been no final award). The circuit court’s retention of jurisdiction over this matter in no way bars Claimant’s ability to litigate his claim at a future date. Fundamental fairness requires jurisdiction of an action until the litigation is completely and finally determined. Because we suspend any determination of whether Claimant has made out a prima facie case that he is odd-lot, we need not address the remaining issue related to Employer’s burden.

[¶ 17.] Affirmed in part and reversed and remanded to the circuit court to retain jurisdiction over Claimant’s odd-lot claim.

[¶ 18.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . The record includes a Department ol Labor Memorandum of Payment for Permanent Partial Disability signed and executed by all parties involved. The memorandum provides for a $15,252.48 payment to Claimant based on a disability impairment rating of 22%. This award is not part of this appeal.

      . The court remanded the case to Department to reconsider the award of Cozine benefits. Upon remand, Department denied Cozine benefits, but allowed payment of certain permanent partial disability benefits to Claimant. Neither party appeals those findings on remand.

      . Claimant has not filed a Notice of Review as to Department's findings for denial of odd-lot benefits on the other alternative grounds. He has also not filed a Notice of Review for any error committed by the circuit court. Thus, this opinion only addresses whether claimant can make out an odd-lot claim for benefits under this newly devised "competitive market" test.

      . During its bench decision, dated November 10, 1999, the circuit court stated:
      On this record, this Claimant was not obviously employable. I arrive at that conclusion primarily because of the fact that none of the doctors indicated he could not work and he was gainfully employed in at least two different jobs from the period of the time after his surgery up through the hearing .... Specifically, that being a bus driver and the coat room position. Thus, it is readily apparent that the circuit court did not believe Claimant to be obviously unemployable as he was currently employed.

      .The "favored work" doctrine, a judicial creation and term of art, imposes limits on claimants so as to "allow an employer to reduce or completely eliminate compensation payments by providing work within the injured employee's physical capacity." See Pulver v. Dundee Cement Co., 445 Mich. 68, 515 N.W.2d 728, 736 (1994). This Court never had the opportunity to apply the doctrine in the context of an odd-lot case. Cf. Kennedy v. Hubbard Milling Co., 465 N.W.2d 792, 797 (S.D.1991) (determining that the “favored work” doctrine did not apply because “the burden never shifted to Employer to show that there was work available” as Claimant failed to prima facie case that he belonged in the odd-lot category); Beckman v. John Morrell & Co., 462 N.W.2d 505, 509-10 (S.D.1990) (holding that Claimant who refused "favored work” was correctly denied temporary total disability benefits).
      In any event, the application of such doctrine is not determinative of the outcome of this case because it is primarily used to limit employees, not employers. This is because the "favored work” doctrine is implicated when an employee is given the opportunity to continue employment through "favored work” with his or her employer. If the employee refuses such "favored work,” then, under the doctrine, the employer cannot be legally obligated to remit workers' compensation benefits to that employee, due to his or her refusal of such work. Thus, the doctrine of favored work has no application to the case at hand.

      . SDCL 62-7-35 provides:
      The right to compensation under this title shall be forever barred unless a written request for hearing pursuant to § 62-7-12 is filed by the claimant with the department within two years after the self-insurer or insurer notifies the claimant and the department, in writing, that it intends to deny coverage in whole or in part under this title. If the denial is in part, the bar shall only apply to such part.


author: KONENKAMP, Justice SABERS, Justice

text:
    2001 SD 90
    Cyril W. SCHREIFELS, Employee, Claimant and Appellant, v. KOTTKE TRUCKING, Employer and Appellee, and Dakota Truck Underwriters, Insurer and Appellee.
    No. 21495.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Decided July 11, 2001.

      Bret C. Merkle of Merkle Law Firm, Sioux Falls, SD, Attorneys for appellant.
    Susan Brunick Simons of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for appellees.
   KONENKAMP, Justice

[¶ 1.] Cyril W. Schreifels appeals from an order granting Kottke Trucking (Employer) and Dakota Truck Underwriters’ (Insurer) motion to dismiss for want of jurisdiction. The matter was dismissed with prejudice due to Schreifels’ failure to comply with SDCL 1-26-31. We affirm.

FACTS

[¶ 2.] Schreifels filed a petition for hearing with the South Dakota Department of Labor. Schreifels, a truck driver, claimed that his three heart attacks and resulting bypass surgery were caused by stress from loading Employer’s truck and trailer. The Department ultimately concluded that Schreifels failed to sustain his burden of proving that his coronary artery disease arose out of and in the course of his employment. Employer and Insurer’s motion for summary judgment was granted.

[¶ 3.] Schreifels, a resident of Big Stone City in Grant County, filed a notice of appeal in the circuit court of the Second Judicial Circuit, Minnehaha County. Employer and Insurer moved to dismiss, arguing that Schreifels failed, within the prescribed time period, to file the appeal in Grant County or Hughes County as required by SDCL 1-26-31. In the alternative, they moved to change venue to Hughes County in accord with SDCL 1-26-31.3. Schreifels responded with a motion for relief pursuant to SDCL 1-26-30.5, seeking an order “curing any irregularity in venue by changing venue in this matter to Grant County,. South Dakota.”

[¶ 4.] The circuit court dismissed the appeal with prejudice and denied Schrei-fels’ later motion for reconsideration. The court reasoned that the matter was an administrative appeal where the notice provisions of SDCL 1-26-31 had to be specifically followed for the court to obtain jurisdiction.

ISSUE

[¶ 5.] Did Schreifels’ failure to file his worker’s compensation appeal in Grant County or Hughes County mandate dismissal of the appeal?

DECISION

[¶ 6.] Appeals from Department worker’s compensation final orders or decisions are taken pursuant to SDCL 1-26. SDCL 62-7-19. According to SDCL 1-26-31:

An appeal shall be taken by serving a copy of a notice of appeal upon the adverse party, upon the agency, and upon the hearing examiner, if any, who rendered the decision, and by filing the original with proof of such service in the office of the clerk of courts of the county in which the venue of the appeal is set, within thirty days after the agency served notice of the final decision, or, if a rehearing is authorized by law and is requested, within thirty days after notice has been served of the decision thereon.

[¶ 7.] “SDCL 1-26-31 provides the basis for the circuit court to exercise jurisdiction.” Oberle v. City of Aberdeen, 470 N.W.2d 238, 242 (S.D.1991). It is clear and uses mandatory language. Stark v. Munce Bros. Transfer & Storage, 461 N.W.2d 687, 588 (S.D.1990). Consequently, under SDCL 1-26-31 a circuit court acquires subject matter jurisdiction of an appeal if within thirty days after the agency served notice of a final decision:

a) a copy of the notice of appeal is served upon the adverse party, the agency and the hearing examiner, and,
b) the notice of appeal is filed in the office of the clerk of courts in the county in which the venue of the appeal is set.

[¶ 8.] In accord with SDCL 1-26-31, the “county in which the venue of the appeal is set” is established by SDCL 1-26-31.1:

The venue of the appeal is as follows:

(1) If the appellant is a resident of this state, to the circuit court for the county of his residence or to the circuit court for Hughes county, as he may elect;
(2) If the appellant is a nonresident or a foreign corporation, to the circuit court for Hughes county;
(3) The parties may stipulate for venue in any county in the state, and the circuit court for such county shall thereupon hear the appeal.
Appeals from a single administrative action may not proceed in more than one county. If multiple appeals of a single action are filed in more than one county, the appeals shall be consolidated and heard in the county in which the appeal is first filed. If more than one appeal is first filed on the same date and a stipulation among the parties as to venue cannot be reached, the venue of the appeal is in the circuit county for Hughes county.

Since the parties had not stipulated for venue, Schreifels was required to file original notice of appeal in the county of his residence, Grant County, or in Hughes County. SDCL 1-26-31, SDCL 1-26-31.1(1). He concedes that he did neither, electing to file the notice of appeal in Minnehaha County, where he found it convenient and he believed the case’s significant contacts were.

[¶ 9.] This Court has clearly held that “[w]hen the legislature provides for appeal to circuit court from an administrative agency, the circuit court’s appellate jurisdiction depends on compliance with conditions precedent set by the legislature.” Claggett v. Department of Revenue, 464 N.W.2d 212, 214 (S.D.1990). The failure to comply with a statutory condition precedent deprives the circuit court of subject matter jurisdiction. Id.

[¶ 10.] Claggett, 464 N.W.2d at 212, construed a condition precedent found in the appeal provision of SDCL 10-69-9. Stark, 461 N.W.2d at 588, however, considered whether the subject matter jurisdiction of the circuit court was invoked under SDCL 1-26-31 when the Department of Labor was not served. This Court held:

The issue here is whether the subject matter jurisdiction of the circuit court was invoked. When the legislature prescribes a procedure for circuit court review of the action of an administrative body, the conditions of the procedure must be complied with before jurisdiction is invoked, (citations omitted).... SDCL 1-26-31 specifically requires service of the notice upon the agency which rendered the decision, in this case the Department of Labor. The statute is clear and uses mandatory language. Matter of Groseth Intern., Inc., 442 N.W.2d 229 (S.D.1989).
As we recently indicated, the notice of appeal serves as a notice of transfer of jurisdiction from the executive branch to the judicial branch. See Groseth, 442 N.W.2d at 231. As a result, this case is inherently different than Olson which involved an intra-agency appeal. Lack of prejudice to Munce has little or no bearing on Stark’s failure to notify the Department of Labor of the transfer of jurisdiction to the judicial branch. Moreover, Stark’s error is in no way negated by the Division of Labor and Management’s completion of the administrative portions of its responsibilities. The circuit court’s subject matter jurisdiction has not been invoked and the circuit court was correct in dismissing the appeal.

Stark, 461 N.W.2d at 588-589. So, too, Schreifels’ failure to file the notice of appeal in the proper county does not invoke the circuit court’s subject matter jurisdiction.

[¶ 11.] Schreifels contends, however, that circuit courts and their judges have jurisdiction coextensive with the state’s boundaries. Consequently, any judge can simply transfer a case to a different venue under the rules of civil procedure. This ignores the Court’s recent decision in State v. Wilson, 2000 SD 133, 618 N.W.2d 513, which rejected the contention that circuit courts have statewide jurisdiction. In addition, worker’s compensation proceedings are generally not governed by the rules of civil procedure and their venue provisions. Sowards v. Hills Materials Co., 521 N.W.2d 649, 652 (S.D.1994). “If the legislature wishes to revise SDCL 1-26-31 to conform to civil practice ... it may do so. The intent of the statute must be determined from what the legislature said, rather than what this court thinks the legislature should have said[.]” Sudbeck v. Dale Electronics, Inc., 519 N.W.2d 63, 67 (S.D.1994).

[¶ 12.] SDCL 1-26-31 clearly delineates who must be served with a notice of appeal and when and where it must be filed in order to transfer jurisdiction from the executive to the judicial branch. Because Schreifels ignored the plain language of the statute and instead chose to file in a county convenient to him but not statutorily mandated, the circuit court for Minnehaha County did not have subject matter jurisdiction over the appeal and correctly ordered it dismissed.

[¶ 13.] Affirmed.

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

[¶ 15.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 16.] The majority opinion concludes that the trial court acted properly in dismissing the appeal instead of simply changing venue. In so doing, the majority opinion states that “worker’s compensation proceedings are not governed by the rules of civil procedure and their venue provisions.” In support of this proposition, the majority opinion cites Sowards v. Hills Materials Co., 521 N.W.2d 649, 652 (S.D.1994) which indicates:

SDCL 15-6-1 provides that the rules of civil procedure govern procedure in the circuit courts. There is no statute or proclamation providing for workers compensation proceedings to be governed by the rules of civil procedure.

Significantly, that case dealt with a Department of Labor’s order of discovery, not the propriety of an appeal to the circuit court.

[¶ 17.] SDCL 1-26-32.1 provides:

The sections of Title 15 relating to practice and procedure in the circuit courts shall apply to procedure for taking and conducting appeals under this chapter so far as the same may be consistent and applicable, and unless a different provision is specifically made by this chapter or by the statute allowing such appeal.

SDCL 15-5-11 allows the trial court to change venue “[w]hen the county designated for that purpose in the complaint is not the proper county.” It is undisputed that Schreifels filed the appeal in the inappropriate county. However, the circuit court was petitioned by Schreifels to change venue to the proper county in accord with SDCL 1-26-31.3. Title 15 clearly vests the circuit court with the power to change venue to the proper county and that is what it should have done.

[¶ 18.] Title 15 is only rendered inapplicable if SDCL chapter 1-26 “specifically” displaces its provisions. Contrary to footnote two of the majority opinion, SDCL 1-26-31 does not “specifically” displace Title 15 as it relates to “grounds for change of venue.” SDCL 1-26-31.1 specifies the proper venue, not what to do if the action is filed in the wrong venue. Our recent decision in State v. Wilson, 2000 SD 133, 618 N.W.2d 513, does not so limit circuit courts or deprive them of the power to change venue.

      . Jurisdiction (the power to hear the case) of the subject matter refers to jurisdiction over the nature of the case and the type of relief sought. Black’s law Dictionary, 857 (7th ed 1999). Venue is the proper or a possible place for the trial of a lawsuit. Id. at 1553. SDCL 1-26-31 places the power to review an administrative decision in "the county in which the venue of the appeal is set” and the court's subject matter jurisdiction is not invoked unless the notice of appeal is filed there.

      . The dissent notes that SDCL 1-26-32.1 provides that the sections of Title 15 relating to practice and procedure in circuit court apply to the procedure for taking and conducting appeals under SDCL ch 1-26. That statute also provides, however, that Title 15 is not applicable if a different provision is specifically made by SDCL ch 1-26. That is exactly what SDCL 1-26-31 does.


text:
    2001 SD 89
    STATE of South Dakota, Plaintiff and Appellee, v. William Boyd GUTHRIE, Defendant and Appellant.
    No. 21466.
    Supreme Court of South Dakota.
    Argued March 20, 2001.
    Decided July 11, 2001.

      Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Philip R. Parent of Arneson, Issenhuth & Gienapp, Madison, SD, Attorneys for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Defense Attorney, Philip R. Parent (Parent), appeals the monetary sanction imposed by the trial court for failing to comply with a reciprocal discovery order. We affirm in part and reverse and remand in part.

FACTS

[¶ 2.] On August 30, 1999, an indictment was filed charging William Boyd Guthrie (Guthrie) with first-degree murder. Parent, as Guthrie’s attorney, appeared and filed a pre-trial discovery motion that same day. On October 5, 1999, the State filed a Reciprocal Pre Trial Discovery Motion, which the trial court granted on October 27, 1999. Pursuant to the order, all discovery was to be completed by January 5, 2000.

[¶ 3.] On January 18, 2000, after the State had rested its case, Parent, for the first time, disclosed to the trial court and the State that Guthrie intended to introduce a purported suicide note into evidence as well as calling an expert witness to authenticate the note. The State objected. Over the State’s objection, the trial court admitted the note into evidence and allowed Guthrie’s expert to testify. The court reserved judgment on sanctions for violating the discovery order until after the trial.

[¶ 4.] On January 21, 2000, Guthrie was found guilty of first-degree murder. On February 22, 2000, the State filed a Motion for Terms asking that Parent pay part of the State’s costs in recalling its out-of-state expert witness to rebut the alleged suicide note. The next day, the trial court held a hearing on the State’s motion. After argument, the trial court found that Parent had violated the court’s reciprocal discovery order and imposed terms of $8866 on defense counsel pursuant to SDCL 23A-13-17. Parent appeals raising the following issue:

Whether the trial court erred in granting the State’s motion for terms and in finding that defense counsel violated a reciprocal discovery order.

STANDARD OF REVIEW

[¶ 5.] The imposition of sanctions by the trial court is reviewed under an abuse of discretion standard. Aberle v. Ringhausen, 494 N.W.2d 179 (S.D.1992); see also Doe v. Puget Sound Blood Center, 117 Wash.2d 772, 819 P.2d 370, 373 (1991) (reviewing a discovery order, and noting that, “it is the proper function of the trial court to exercise its discretion in the control of litigation before it”).

ISSUE

[¶ 6.] Whether the trial court erred in granting the State’s motion for terms and in finding that defense counsel violated a reciprocal discovery order.

[¶ 7.] First, we must review, based on an abuse of discretion standard, whether the trial court correctly determined that Parent had violated the court’s reciprocal discovery order. As noted above, reciprocal discovery was to be completed by January 5, 2000. Parent concedes he knew of the note’s existence six months prior to trial, and that he did not reveal the note until January 18, 2000, thirteen days after the discovery order deadline. Parent argues that he could not reveal the note’s existence without violating the South Dakota Rules of Professional Conduct, namely Rule 1.6.

[¶ 8.] Parent’s argument fails for two reasons. First, the purported suicide note does not constitute confidential communication protected under Rule 1.6 because it is a written communication purported to be from the victim to her surviving children. Because the note is not written by Guthrie, as client, and addressed to Parent, as attorney, the umbrella of confidentiality does not cover Parent’s obligation to turn over the note to the prosecution. See generally Hogg v. First Nat’l Bank, 386 N.W.2d 921 (S.D.1986). Furthermore, the note is physical evidence and, therefore, is not communication within the purview of Rule 1.6. Physical evidence, whether exculpatory or inculpatory, cannot be withheld by a criminal defense attorney. “[D]efense counsel may not retain physical evidence pertaining to the crime charged.” State v. Fairbanks 192 Cal.App.3d 32, 237 Cal.Rptr. 158, 159 (1987). Therefore, “[a]n attorney may not act as a depository for criminal evidence, and he may not suppress such evidence.” State v. Dillon, 93 Idaho 698, 471 P.2d 553, 565 (1970).

[¶ 9.] Second, the reciprocal discovery order issued by the trial court specifically states that all relevant documentary evidence is to be turned over to the other party. Parent does not dispute that the note is physical evidence. Rather, he argues that his ethical obligation to his client precludes him from complying with such order. As previously stated, his ostensible obligation to his client to not disclose the note, however well intentioned, does not provide Parent a defense to the court’s discovery order.

[¶ 10.] We now turn the appropriateness of the monetary sanction employed by the trial court. Although Parent argues to the contrary, the trial court certainly had the power to levy such sanction. SDCL 23A-13-17 provides:

If, at any time during the course of a proceeding, it is brought to the attention of a court that a party has failed to comply with an applicable discovery provision, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.

(emphasis supplied). A plain reading of the statute makes it clear that the trial court has the authority to order monetary sanctions against a party in violation of its discovery order.

[¶ 11.] We have also recognized, apart from statutory authority, that courts have the inherent power to regulate trial procedure. See e.g. Nauman v. Nauman, 320 N.W.2d 519, 521 (S.D.1982); City of Mount Vernon v. Althen, 72 S.D. 454, 458, 36 N.W.2d 410, 412 (1949); Simmons v. Simmons, 66 S.D. 76, 79, 278 N.W. 537, 538 (1938). If the trial court has the power to order reciprocal discovery, the court, inter alia, has the power to enforce such order. It is also fair to assume, as a logical extension, that a trial court has the inherent discretion to impose costs upon another party for violating a court order regardless if it is a civil or criminal forum. Thus, a trial court has the inherent power to fashion an appropriate sanction for discovery violations in criminal cases, including monetary sanctions. See e.g. United States v. Horn, 29 F.3d 754 (1st Cir.1994) (affirming the trial court’s imposition of monetary sanctions against a prosecutor for violating a discovery order in a criminal case).

[¶ 12.] This is a case of first impression for reviewing an award of reasonable expert fees as an appropriate sanction for a discovery violation. Although the trial court has the authority to impose sanctions, it must do so with reasonableness in mind. According to SDCL 19-15-16, “[t]he compensation of expert witnesses appointed by the court shall be fixed by the court at a reasonable amount.” While this court rule only applies to appointed witnesses, a trial court must consider the totality of the circumstances in assessing reasonableness when determining expert fees. See also City of Sioux Falls v. Kelley, 513 N.W.2d 97, 110 (S.D.1994); City of Winner v. Bechtold Invest. Inc., 488 N.W.2d 416 (S.D.1992). Factors to consider when determining reasonableness include: 1) reasonable hours expended multiplied by a reasonable fee, 2) the severity of the sanction weighted against the equities of the parties, including ability to pay, 3) availability of less drastic sanctions which would prevent future abuses, and 4) other factors including the offending party’s history and degree of bad faith contributing to the violation. See White v. General Motors Corp. Inc., 908 F.2d 675 (10th Cir.1990); Chittenden & Eastman Co. v. Smith, 286 N.W.2d 314 (S.D.1979); see also Aberle, supra. While all factors may not apply in each case, the trial court should consider those factors material to its determination of “reasonableness.”

[¶ 13.] First, the trial court should determine whether the expert’s hourly rate and the time expended are reasonable. According to the State’s records, the State’s expert charged $350 per hour for his services. The State’s records also show that the expert charged 16 hours for his testimony in rebuttal. There is no evidence in the record whether $350 per hour is a reasonable fee for this type of expert. What is in the record is the amount charged by the defense expert, $40 per hour.

In general, a reasonable hourly rate would be the ordinary fee for similar work in the community. The term ‘reasonable hourly rate’ has been defined as the ‘hourly amount’ to which [experts] in the area would typically be entitled for a given type of work on the basis of an hourly rate of compensation.

Emery v. State of South Dakota, 132 F.Supp.2d 803, 810 (D.S.D.2001) (internal citations omitted). When comparing what the two experts charged, it is quite clear there is a great disparity in their fees. Like attorneys’ fees, we do not accept the actual amount charged by experts as reasonable per se. See Kelley, supra. “The basic litmus test for professional fees is the average rate charged by ‘local’ professionals of similar work.” In re Waldoffs Inc., 132 B.R. 329, 333 (Bankr.S.D.Miss.1991) (internal citation omitted). “If [experts] perform similar tasks arising out of an identical factual circumstance, disparity in fee requests may itself indicate an inflated hourly rate[.]” Id. “A litigant need not use local expert witnesses, but is not entitled to additional fees if he uses out-of-state experts where local ones are available. In such a case the court should set the expert fee according to the standard of the fee charged by local experts, and the litigant who chooses non-local experts must pay the difference.” Welton v. Falcon, 341 So.2d 564, 573 (La.Ct.App.1976). Thus, the trial court should determine what is a reasonable fee to be charged in South Dakota.

[¶ 14.] Likewise, the 16 additional hours expended by the State’s expert should also be examined. Assuming the note had been seasonably turned over during the discovery period, the State might have had to incur costs to recall this witness. It should be determined whether the prosecution, regardless of whether or not defense counsel complied with the discovery order, would have avoided such expenses. Thus, the trial court should revisit this issue to determine what hours, if any, the State would have incurred had not defense counsel violated the court’s discovery order.

[¶ 15.] Second, in determining the appropriateness of a sanction, “[t]he severity of the sanction must be tempered with consideration of the equities,” including the ability to pay. Chittenden, 286 N.W.2d at 316-17. The record does not disclose whether “equities” were considered in the trial court’s imposition of sanctions. While it is not the position of this Court to direct the State on who to hire as its expert, this Court will, however, consider the expenses attributable to such expert when considering the “equities” of the parties in determining reasonableness.

[¶ 16.] Lastly, the court should take into account whether defense counsel is court-appointed or has on prior occasions had difficulty complying with court orders are other factors to consider. Likewise, there should also be a determination whether the non-complying party’s conduct was willful, malicious or done in bad faith. On remand, the court should consider the above-mentioned factors in determining a reasonable fee to be paid to the State for its expert because defense counsel failed to comply with the trial court’s discovery order.

[¶ 17.] Until the trial court performs a factored analysis for determining reasonableness, we cannot perform a meaningful appellate review. Therefore, we affirm the trial court’s finding that defense counsel violated the discovery order, and remand for further consideration on the reasonableness of the sanction given.

[¶ 18.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . Parent acknowledges that he knew of the note's existence as early as June of 1999. The note was admittedly found by Guthrie and was purported to be a suicide note written by his late wife. The note reads as follows:
      Dear Suzanne,
      I am sorry I ruined your wedding. Your dad told me about your concerns of interfering in Jenalu’s and the possibility I might ruin hers. I won't be there so put your mind at ease. You will understand after the wedding is done.
      I love you all. Mom

      . This Court affirmed Guthrie's murder conviction in State v. Guthrie, 2001 SD 61, 627 N.W.2d 401.

      . Rule 1.6. Confidentiality of Information.
      (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
      (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
      (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
      (2) to establish a claim or defense on behalf of the lawyer or the lawyer's employees in a controversy between the lawyer or the lawyer's employees and the client, to establish a defense to a criminal charge or civil claim against the lawyer or the lawyer’s employees based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer or the lawyer's employees representation of the client;
      (3) to the extent that revelation appears to be necessary to rectify the consequences of a client’s criminal or fraudulent act in which the lawyer's services had been used.


author: KONENKAMP, Justice.

text:
    2001 SD 91
    GETTYSBURG SCHOOL DISTRICT 53-1, Plaintiff and Appellant, v. Catherine H. LARSON, Defendant and Appellee.
    No. 21750.
    Supreme Court of South Dakota.
    Considered on Briefs May 29, 2001.
    Decided July 11, 2001.

      Craig E. Smith of Neumayr & Smith, Gettysburg, SD, Attorneys for plaintiff and appellant.
    Brent A. Wilbur, Neil Fulton of May, Adam, Gerdes & Thompson, Pierre, SD, Attorney for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] In this administrative appeal, we review the Department of Labor’s ruling that the Gettysburg School District violated its reduction in force (RIF) policy. The school district contends that it was not required to comply with its RIF policy, but if it was, it followed the correct protocol. In addition, the district claims that the department was without jurisdiction to hear the grievance and without authority to reinstate the released teacher. Because the school district agreed to the RIF policy as part of its collective bargaining agreement with the teachers’ union, and because the district released a teacher by virtue of the RIF policy, the district was bound to abide by the policy. We affirm.

Background

[¶ 2.] In the spring of 1999, the superintendent of the Gettysburg School District, under budgetary constraint, recommended a reduction in force to the school board. The necessity was undisputed. At a meeting on March 8, 1999, the board adopted the recommendation and decided to reduce one certified elementary teacher, “with no reduction in coaching positions.”

[¶ 3.] After passing a resolution, the board notified the Gettysburg Teachers Association of its decision. The association was the sole bargaining agent for all “regularly employed certified personnel,” under a collective bargaining agreement with the school district. Article IX of that agreement set out mandatory procedures for the board to follow in implementing a reduction in force. The first step required that the association have an opportunity to present alternatives. The next steps are set out below:

2. Efforts to bring about the required reduction through normal attrition, e.g., resignations and retirement, will be exerted.
3. If normal attrition does not satisfy the need then teachers with less than full certification ... shall be released first.
4. Teachers who have not achieved continuing contract status will be released.
5. Teachers who have achieved continuing contract status will not be released unless the required reduction is not achieved in numbers 1, 2, 3.
6. In the application of numbers 1, 2, 3, and 4 above, the principle of seniority will be utilized when the qualifications of two or more teachers are substantially equal. Length of service within the school system will determine the order of release!.]

The necessary reduction could not be accomplished through either resignation or retirement, and no teacher held less than a full certification. Consequently, Catherine Larson and Bryan Zahn, two teachers without continuing contract status, were notified that they were subject to release.

[¶ 4.] Catherine Larson had held a full-time teaching contract with the school district for the years 1997-98 and 1998-99. She had also been employed as a certified substitute teacher for the 1993-94 school year. As a certified substitute teacher, Larson taught the entire school year in one classroom and taught summer school under contract in 1995. She performed intermittent substitute teaching from 1995 until her next full-time contract in 1997. On the other hand, Bryan Zahn had held a full-time teaching contract with the district for three consecutive school years: 1996-97,1997-98,1998-99.

[¶5.] Under the district’s RIF policy, the board would decide which of the two teachers to release. Because neither had attained continuing contract status, the board was required to set the order of release by “length of service.” Delane Thom, the school board chair, explained that because Zahn would attain continuing contract status first, he had seniority and therefore would retain his position. According to Thom, the board did not consider Larson’s substitute service in making its decision. The school board’s reasoning was confirmed in its resolution: “The board further finds that Bryan Zahn has three continuous years as a certified teacher under the negotiated agreement and is therefore entitled to preference.” Thom later declared that coaching “had nothing to do ... with the actual decision” to retain Zahn and release Larson.

[¶ 6.] Larson appealed to the school board as provided in the district’s negotiated agreement. The board ruled that Larson’s 1993-94 service could not be reckoned in calculating seniority under the negotiated agreement; consequently, Zahn had the greater length of service. For the board, the decision to release Larson “was based solely on the reduction in force policy.” Larson appealed to the Department of Labor. The department ruled that the RIF policy was binding on the school district and that the policy clearly and unambiguously measured seniority by “length of service,” not “continuous length of service.” Thus, Larson’s “length of service” was greater, considering all her previous service as a regular and a substitute teacher. On appeal, the circuit court affirmed. The district now appeals on six issues, which we consolidate into three.

Standard of Review

[¶ 7.] Our scope of review in an administrative appeal is governed by SDCL 1-26-36. In examining an agency decision, we apply the same standard as the circuit court, with no assumption that the court’s decision was correct. Cheyenne River Sioux Tribe Tel. Auth. v. Public Utilities Comm’n, 1999 SD 60, ¶ 12, 596 N.W.2d 604, 608 (citing Appeal of Templeton, 403 N.W.2d 398, 399 (S.D.1987)). We will not overturn any agency fact findings absent clear error. Sisseton Education Ass’n v. Sisseton Sch. Dist., 516 N.W.2d 301, 302 (S.D.1994) (citations omitted). Conclusions of law are fully reviewable. Id.

1. Obligation to Follow RIF Policy

[¶ 8.] The district contends that it is not bound to follow its RIF policy because SDCL 13-43-6.6 provides that “no agreement may limit the district’s right to terminate a teacher for the grounds set forth in §§ 13-43-6.1 to 13-43-6.3[.]” This is correct, but only when a teacher is discharged or nonrenewed by authority of these statutes. SDCL 13-43-6.3 allows nonrenewal of a nontenured teacher’s contract without requiring a reason. Here, Larson was released under the RIF policy, not the nonrenewal statute. The district suggests that this statute allows it somehow to bypass its RIF policy, although the district specifically decided to release a teacher under that RIF policy. This argument is against reason and precedent.

[¶ 9.] The district made it clear that its action was a reduction in force and not a decision for contract nonrenewal under SDCL 13-43-6.3. The official letter sent to Larson notified her that it was “the judgment of the Gettysburg Board to nonre-new your contract under Article IX of the GTA Negotiated Agreement Reduction in Force Policy[.]” Similarly, the board’s resolution and its final decision both declare the reduction in force as the sole reason for Larson’s release.

[¶ 10.] Undoubtedly, the school district released Larson under its RIF policy. A school board’s power to nonrenew a teacher’s contract without explanation is not at issue here. By acting under the RIF policy, the district must abide by its terms. Wessington Springs Educ. Ass’n v. Wessington Springs School Dist., No. 36-2, 467 N.W.2d 101, 104 (S.D.1991) (citations omitted).

2. Compliance with RIF Policy

[¶ 11.] Disputes over the meaning of terms in teacher contracts are resolved under the general principles of contract law. Id. If the RIF policy in the negotiated agreement is clear and unambiguous, we cannot go beyond its provisions. See id. (citing AFSCME Local 1922 v. State, 444 N.W.2d 10, 12 (S.D.1989))(further citations omitted). Contracting parties are held to the terms of their agreement, and disputes cannot be resolved by adding words the parties left out. See Wessington Springs Educ. Assoc., 467 N.W.2d at 104.

[¶ 12.] The district’s collective bargaining agreement with the Gettysburg Teachers Association enumerates a specific protocol for implementing a reduction in force. Article IX of the agreement states that “[i]n the event it becomes necessary in the judgment of the board to reduce the number of teachers ... the board shall follow the procedures as listed.” If the necessary reduction cannot be accomplished through normal attrition, teachers without continuing contract status (tenure) can be released. In calculating the order of release, the RIF policy employs the “principle of seniority,” measured by the “length of service within the school system.”

[¶ 13.] The board found that Zahn was the more senior employee because he had three continuous years of service. Larson, on the other hand, had two continuous years of service. According to the school board chair, because Zahn would attain continuing contract status first, he was more senior. The department concluded that this interpretation went against the plain and unambiguous language of the RIF policy: ‘Tt]he contract requires that a reduction in force be determined by length of service, not continuous length of service.” (Emphasis added.) Counting Larson’s service during the 1993-94 school year, her summer school service, and her two sequential contracts, she had a greater “length of service.”

[¶ 14.] A school board cannot rewrite an incompletely specified agreement, inserting or deleting to make it mean more than its words plainly declare. Wessington Springs Educ. Assoc., 467 N.W.2d at 104. The. RIF policy includes no expression like “continuous” or “uninterrupted” to define length of service. See id. These terms could have been adopted when the agreement was made, if the parties had wanted them. Similar qualifying phrases are commonly found in other public school agreements. Id. at 102; see e.g. Mackey v. Newell Providence Comm. School Dist., 483 N.W.2d 5, 8 (Iowa Ct.App.1992)(RIF policy gives preference to teacher with greater continuous length of service); Dykeman v. Board of Educ. of Dist. of Coleridge, 210 Neb. 596, 316 N.W.2d 69, 70 (Neb 1982)(RIF policy instructs school board to consider length of uninterrupted service). Certainly, the department’s interpretation of the RIF policy was coherent. Some school systems specifically grant seniority credit for full-time substitute teaching even if the substitute position does not immediately precede a regular full-time contract. See e.g. Kransdorf v. Board of Educ. of Northport-East Northport Union Free School, 81 N.Y.2d 871, 597 N.Y.S.2d 631, 613 N.E.2d 537, 538-39 (1993).

[¶ 15.] The school district advances two further arguments. First, it claims that the department failed to consider extracurricular activities, such as Zahn’s coaching, when making its decision. With Zahn’s coaching activity, the district alleges that the two employees are not “substantially equal” under the RIF policy, and a “length of service” analysis is not required. The district did not make this argument to the department; consequently, we will not address it on appeal. See Grand State Property, Inc. v. Woods, Fuller, Shultz & Smith, 1996 SD 139, ¶ 19, 556 N.W.2d 84, 88 (citations omitted). We note in passing, however, that the district’s own witness testified that the decision was based on “continuous service,” not on coaching.

[¶ 16.] Second, the district asserts that even if Larson’s 1993-94 contract can be included in calculating her seniority, her days of summer school teaching and random substitute teaching cannot. Larson taught summer school under the district’s written contract. Absent any limiting language in the contract, it cannot be held as a matter of law that summer school teaching is not “service” within the district.

3. Department of Labor’s Authority to Reinstate

[¶ 17.] The school district argues that the department lacked the authority to grant reinstatement as a remedy in this case. According to the district, Fries v. Wessington School Dist. No. 2-4, 307 N.W.2d 875 (S.D.1981), supports its contention. On the contrary, Enes specifically held that the department possesses the authority to order reinstatement of a nontenured teacher under certain circumstances. Id. at 877. Fries simply cautions that an order of reinstatement cannot confer rights of tenure on a teacher who has not reached continuing contract status. Id. at 879. Under SDCL 3-18-15.2, the department has the authority to order reinstatement as of the date Larson was improperly released. That authority does not infringe on school board autonomy; it requires a board to follow the procedures it contractually adopted. Id.

[¶ 18.] Affirmed.

[¶ 19.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . Larson was given the same benefits as a full-time teacher for her long-term substitute position. These benefits included sick days, personal days, insurance, and South Dakota retirement.

      . Another board member testified that "based on the reduction in force policy ... we went down the line and continuing years of service is the way it was presented to us and that was our interpretation.” (emphasis added).

      . The district's jurisdictional challenge is without merit. It relies on Jensen v. Bonesteel-Fairfax School District No. 26-5, 473 N.W.2d 467 (S.D.1991). There, we found that the department was without jurisdiction to hear a teacher's challenge of her nonre-newal under SDCL 13-43-10.2. Id. at 470. This statute has been repealed, and the case is distinguishable. Larson challenges the application or interpretation of a provision in the collective bargaining agreement under SDCL 3-18-15.2.
      SDCL 3-18-15.2 provides for an appeal to the department when a public employee's grievance remains unresolved. See SDCL 3-18-15.2. A grievance is defined by statute as “a complaint by a public employee ... based on alleged violation, misinterpretation, or inequitable application of any existing agreements, contracts, [or] ordinances ... of the State of South Dakota or ... of the public schools, or any authority, commission, or board ... as they apply to the conditions of employment.” See SDCL 3-18-1.1.

      . The department also concluded that the RIF policy was part of a binding contract between the district and the teacher's association, and thus SDCL 13-43-6.6 did not relieve the district of its bargained for duty to abide by the RIF protocol. We review this question de novo as an issue of law. See Zoss v. Dakota Truck Underwriters, 1998 SD 23, ¶ 4, 575 N.W.2d 258, 260 (citations omitted). SDCL 13-43-6.4 provides that in releasing a teacher "due to a reduction in staff, only written notice is required...." This statute, unlike §§ 13-43-6.1 to 13-43-6.3 inclusive, does not override the provisions of a collective bargaining agreement in favor of a school district’s termination rights. SDCL 13-43-6.6.

      . The district asserts that Murphy v. Pierre Independent School Dist. No. 30-2, 403 N.W.2d 418 (S.D.1987) supports its position. In Murphy the teacher was not subject to a reduction in force and instead was informed that her contract would not be renewed. Id. at 418-19. Murphy stands for the proposition that a school board is not required to proceed under a RIF policy simply because it is in place. Id. at 420. Instead, a district could choose not to renew a nontenured teacher. Id.

      . Continuing contract status is a statutory term. SDCL 13-43-6.3 requires that teachers receive four consecutive contracts before they can attain such status.