author: G. BARRY ANDERSON, Judge.

text:
    Jana KYUTE, Respondent, v. Evelyn AUSLUND, Appellant.
    No. C2-03-164.
    Court of Appeals of Minnesota.
    Sept. 16, 2003.
    Paul R. Aamodt, Fargo, ND, for appellant.
    Kristi A. Hastings, Pemberton, Sorlie, Rufer & Kershner, Fergus Falls, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

This case rises out of a motor-vehicle accident. Following a jury trial on the issue of damages resulting from the accident, respondent was awarded $913.43 for unreimbursed past medical expenses, $6,000 for future medical expenses, and $6,000 for loss of future earning capacity. Judgment for these amounts was entered against appellant. Appellant challenges the judgment, arguing that (1) respondent’s unreimbursed past medical expenses should be paid by respondent’s first-party insurer, and (2) future medical expenses and loss of future earning capacity are non-economic damages subject to the tort-threshold requirements of Minn. Stat. § 65B.51, subd. 3 (2002). Because we conclude that appellant is liable for respondent’s unreimbursed past medical expenses and that future medical expenses and loss of future earning capacity are economic damages, not subject to the tort-threshold requirements of Minn.Stat. § 65B.51, subd. 3, we affirm.

FACTS

On October 9, 1998, respondent Jana Kyute sustained injuries in a motor-vehicle accident when her vehicle was struck by appellant Evelyn Ausland’s vehicle. Appellant admitted liability for the accident. A jury trial on the issue of damages was held, and the jury returned a special verdict on August 2, 2002. The jury found that respondent did not satisfy any of the tort-threshold requirements of Minn.Stat. § 65B.51, subd. 3 (2002), and awarded respondent, relevant to this appeal, $913.43 for unreimbursed past medical expenses, $6,000 for future medical expenses, and $6,000 for loss of future earning capacity.

The district court concluded that respondent was entitled to the awards for un-reimbursed past medical expenses, future medical expenses, and loss of future earning capacity, and judgment was entered accordingly.

This appeal follows.

ISSUES

I. Is respondent entitled to recovery for unreimbursed past medical expenses?

II. Is respondent entitled to recovery for future medical expenses and loss of future earning capacity?

ANALYSIS

I.

Appellant contends that because the $913.43 balance for past medical expenses is payable by respondent’s first-party insurance provider, appellant should not be liable for this amount. This court will substitute its judgment for that of the jury only when there is no evidence reasonably tending to support the verdict. Baker v. Amtrak Natl. R.R. Passenger Corp., 588 N.W.2d 749, 753 (Minn.App.1999).

Under Minn.Stat. § 65B.51, subd. 2 (2002), uncompensated economic losses may be recovered in a negligence action involving an automobile that is insured as required by the no-fault act, without regard to tort thresholds. Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn.1983). Expenses for medical, x-ray, and rehabilitative services are economic losses under Minn.Stat. § 65B.51, subd. 2. See Minn.Stat. §§ 65B.44, subd. 2 (medical, x-ray and rehabilitative services shall be reimbursed by medical expense benefits), .51, subd. 2 (economic loss includes uncovered costs as outlined in Minn.Stat. § 65B.44) (2002).

Here, the jury found that respondent had incurred $5,383.80 in diagnostic x-ray, rehabilitation, and non-diagnostic and non-rehabilitative health-care expenses. The district court found that respondent had been reimbursed $4,470.37 of these costs, resulting in a balance of $918.43. Respondent testified that she had been “cut off’ from receipt of no-fault benefits prior to trial, which resulted in the unreimbursed amount and the record contains no evidence to the contrary. The jury’s award is supported by the evidence presented at trial and the district court’s finding on this issue is supported by the record and is not clearly erroneous. Respondent is entitled to recovery of her unreimbursed past medical expenses as determined by the jury.

II.

Appellant contends that respondent should not recover future medical expenses and loss of future earning capacity because respondent did not establish one of the tort thresholds set forth in Minn. Stat. § 65B.51, subd. 8 (2002). At its core, appellant’s argument is that future medical expenses and loss of future earning capacity are non-economic losses and, thus, are not recoverable without establishing one of the section 65B.51, subdivision 3, tort thresholds. Statutory construction is a question of law that this court reviews de novo. State v. Kiminski, 474 N.W.2d 385, 389 (Minn.App.1991), review denied (Minn. Oct. 11, 1991). The district court’s findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01.

Minn.Stat. § 65B.51, subd. 1 states:

With respect to a cause of action in negligence accruing as a result of injury arising out of the operation * * ⅜ of a motor vehicle.

Further, no person shall recover damages for noneconomic detriment unless they have established one of the listed tort thresholds. Id. at subd 3. Statutes also define “noneconomic detriment” as

all dignitary losses suffered by a person as a result of injury arising out of the * * * use of a motor vehicle including pain and suffering, loss of consortium, and inconvenience.

Id. at, subd. (8). Although “economic loss” is not defined by statute, quantifiable future medical expenses and loss of future earning capacity are entirely distinguishable from pain and suffering, loss of consortium and other “dignitary losses.” Additionally, Minn.Stat. § 65B.43, subd 7, defines “loss” as “economic detriment * * ⅜ consisting of medical expense, and income loss * * As a general proposition, medical expenses and loss of income are clearly economic losses.

This court has recognized that future loss of earning capacity and future medical expenses are economic losses distinguishable from non-economic losses such as pain and suffering and disability. Johnson v. State Farm Mut. Auto. Ins. Co., 574 N.W.2d 468, 472 (Minn.App.1998) (stating that jury award for past medical expenses, past wage loss, and future medical expenses included award “only for economic damages” (emphasis in original)); see Ward v. Ward, 453 N.W.2d 729, 732 (Minn.App.1990) (stating that compensation for future medical expenses and loss of future earning capacity, through settlement of a personal injury suit, are economic damages, as opposed to non-economic damages for pain and suffering), review denied (Minn. June 6, 1990); see Marose v. Hennameyer, 347 N.W.2d 509, 511 (Minn.App.1984) (recognizing the appellant’s claim for future medical expenses as a claim for future economic loss).

In light of the statutory definitions and precedent, we find it difficult to comprehend how past medical expense and income loss, long recognized as economic losses, could differ so much in character from future medical expense and income loss or earning capacity so as to render those future damages non-economic losses. We recognize that allowing claims for future medical expenses and loss of future income -without requiring satisfaction of one of the tort-threshold requirements may well lead to increased litigation, but the legislature has not acted to bar these types of claims, and it is not this court’s province to do so.

As economic losses, future medical expenses and loss of future income are not subject to the tort-threshold requirements of Minn.Stat. § 65.51, subd. 8. By extension, as economic losses not covered by first-party insurance, future medical expenses and loss of future earning capacity are recoverable without establishing one of the tort thresholds of section 65B.51, subdivision 3. Minn.Stat. § 65B.51, subd. 2 (2002).

DECISION

Because respondent is entitled to recovery of unreimbursed past medical expenses, and because future medical expenses and loss of future earning capacity are economic damages, not subject to the tort-threshold requirements of Minn.Stat. § 65B.51, subd. 3 (2002), we affirm.

Affirmed.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    TOLLEFSON DEVELOPMENT, INC., Appellant, v. Patrick McCARTHY, et al., Respondents.
    No. A03-185.
    Court of Appeals of Minnesota.
    Sept. 16, 2003.

      Chad D. Lemmons, Linda K Thompson, Kelly & Fawcett, P.A., St. Paul, MN, for appellant.
    Rollin H. Crawford, Stephen H. Fochler, Ann C. O’Reilly, LeVander, Gillen & Miller, P.A., St. Paul, MN, for respondent.
    Considered and decided by HARTEN, Presiding Judge, HUDSON, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

On appeal from the dismissal of its action for failure to state a claim on which relief could be granted, appellant argues that the settlement of a separate action to enforce a purchase agreement to transfer real property creates an equitable interest in the land sufficient to sustain this action for partition. We affirm.

FACTS

James McCarthy and respondent Patrick McCarthy were brothers and owners as tenants in common of a parcel of real property located in Eagan. On August 17, 2000, James McCarthy signed a purchase agreement to sell his interest (approximately 60 acres) in this parcel to appellant Tollefson Development, Inc. Pursuant to this agreement, the sale was conditioned on appellant’s fulfillment of nine contingencies. Patrick McCarthy was not a party to this purchase agreement.

Appellant sued James McCarthy to enforce the purchase agreement and to compel the sale of the property. On April 30, 2002, appellant and James McCarthy reached a settlement, providing for a payment of $4.2 million from appellant to James McCarthy in exchange for his interest in the parcel and requiring the sale of the property to close before November 14, 2002.

Before the sale could close, however, James McCarthy died intestate. Patrick McCarthy is James McCarthy’s sole heir at law and was appointed personal representative of James McCarthy’s estate. Appellant moved to enforce the settlement agreement. In its October 16, 2002, settlement order, the district court concluded that appellant and James McCarthy reached a binding settlement agreement but that “Patrick McCarthy was not a party bound by the terms and conditions of the settlement agreement.” Although the motion was brought and the settlement order was issued months after James McCarthy’s death, the order neither addresses his death nor the means by which appellant may enforce the settlement on James McCarthy’s estate.

Because the estate of James McCarthy took no action to sell the interest in the property to appellant as dictated by the settlement agreement, appellant sued Patrick McCarthy and any unknown claimants to an interest in the property on October 20, 2002, seeking partition of the property. On October 29, 2002, appellant also filed a claim in probate court asserting rights to the real property. On December 10, 2002, Patrick McCarthy brought a motion to dismiss the partition action under Minn. R. Civ. P. 12.02(e), arguing that appellant’s interest in the property was not sufficient to support a claim for partition. On February 5, 2003, the district court granted Patrick McCarthy’s motion to dismiss appellant’s complaint with prejudice for failure to state a claim on which relief could be granted. This appeal followed.

ISSUE

Did the district court err in granting the motion to dismiss because appellant, relying solely on the equitable interest obtained from a purchase agreement for real estate with unfulfilled contingencies, failed to state a claim on which relief could be granted?

ANALYSIS

A complaint that fails to state a claim on which relief can be granted must be dismissed. Minn. R. Civ. P. 12.02(e). We review a complaint dismissed pursuant to Rule 12.02(e) to determine “whether the complaint sets forth a legally sufficient claim for relief.” Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn.1980) (emphasis omitted). Because dismissals under Rule 12.02(e) are generally disfavored, we will not uphold such a dismissal “if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739-40 (Minn.2000). We must accept the allegations contained in the complaint as true; whether the plaintiff can prove the alleged facts is immaterial to our analysis. Elzie, 298 N.W.2d at 32-33.

In granting Patrick McCarthy’s motion to dismiss, the district court held that the equitable interest that appellant obtained by entering a purchase agreement with James McCarthy was insufficient to give appellant standing to bring a partition action. To maintain an action for partition, a party must first show that it is seized of the requisite title to the property. Ferguson v. Shea, 374 N.W.2d 575, 576 (Minn.App.1985). Section 558.01 governs who may bring an action to partition real property:

When two or more persons are interested, as joint tenants or as tenants in common, in real property in which one or more of them have an estate of inheritance or for life or for years, an action may be brought by one or more of such persons against the others for a partition thereof according to the respective rights and interests of the parties interested therein....

Minn.Stat. § 558.01 (2002). Appellant argues that the purchase agreement vested equitable title in appellant, leaving only the legal title with James McCarthy. Because it obtained James McCarthy’s interest in the subject real estate from the settlement, appellant maintains that it has a common ownership interest with Patrick McCarthy sufficient to support a partition action.

It is undisputed that appellant has an equitable interest in the Eagan parcel. Under the doctrine of equitable conversion, once parties have executed a binding contract for the sale of real estate, as here, equitable title vests in the vendee and the vendor holds only legal title as security for payment of the balance of the purchase price. Stiemagle v. County of Waseca, 511 N.W.2d 4, 5 (Minn.1994); In re S.R.A, 219 Minn. 493, 505, 18 N.W.2d 442, 449 (1945), aff'd sub nom. S.R.A., Inc. v. State, 327 U.S. 558, 565, 66 S.Ct. 749, 754, 90 L.Ed. 851 (1946). As equitable fee owner, the vendee is entitled to full possession and enjoyment of the property, subject to cancellation of that ownership interest if the vendee does not comply with the contract terms. Stiernagle, 511 N.W.2d at 5.

In recognizing the equitable-conversion doctrine, the Minnesota Supreme Court held in S.R.A. that, under an executory real-estate contract, the equitable estate, in its entirety, passes immediately to the vendee at the moment the contract becomes effective. 219 Minn, at 505, 18 N.W.2d at 449. Only legal title remains with the vendor for security purposes. Id. Addressing the possibility that the closing would not occur, the S.R.A. court stated,

[t]he vendee’s equitable title may be divested for failure of the vendee to perform the conditions of the contract; but, until divested, such equitable title is wholly in the vendee. The instant vesting of the entire equitable title in the purchaser is consistent with his right to enjoy the entire use and benefit of the property (inclusive of both profits and increments in value) although he has paid only a fraction of the purchase price.

Id. at 505, 18 N.W.2d at 449-50 (citations omitted).

Minnesota courts have held that the common ownership required by the partition statute may be based on either legal or equitable title. Searles v. Searles, 420 N.W.2d 581, 583 (Minn.1988) (Citing McArthur v. Clark, 86 Minn. 165, 90 N.W. 369 (1902)). Although such a holding is potentially determinative, our analysis does not end here. An examination of the nature of the equitable interest is necessary to determine whether it provides an interest in real property that is sufficient to maintain a partition action.

Searles is distinguishable from this case because it does not address whether a vendee’s equitable interest obtained from a real-estate purchase agreement may sustain a partition action. Instead, Searles addressed whether, after a marital dissolution, a party can bring a partition action against a former spouse based on the party’s marital interest in real estate purchased by the former spouse. Id. The supreme court concluded that the party’s marital interest was “not inchoate; it matured at the time of dissolution of the marriage.” Id. Her ownership claim, therefore, was sufficient to bring an action to partition the property. Id. Thus, although Minnesota courts have recognized that equitable title may support a partition action, here we must determine more precisely whether the equitable interest appellant obtained from executing a purchase agreement vested appellant with a mature, choate interest that will support a partition action.

Patrick McCarthy argues that, because the purchase agreement contained nine contingencies that had to be satisfied before the sale closed, which remain unsatisfied, appellant’s interest, even if labeled “equitable,” is insufficient to form the basis of a partition action. Patrick McCarthy’s argument is supported by the law of other jurisdictions.

The Oklahoma Supreme Court has held that partition can be maintained by an equitable title holder only if the individual’s “equity is complete and entitles him to demand a conveyance of the legal title.” Hargis v. Wedge, 195 Okla. 493, 159 P.2d 553, 554 (1945). Likewise, the Indiana Supreme Court has held that, in order to bring an action for partition, the party maintaining a partition action must have either legal or equitable title and the “right” to possession. Hurwich v. Zoss, 170 Ind.App. 542, 353 N.E.2d 549, 550-51 (1976); Helvey v. O’Neill, 153 Ind.App. 635, 288 N.E.2d 553, 557 (1972). Similarly, the Missouri Court of Appeals held in an apposite case that, when the parties seeking partition never possessed legal title, had given no value to the vendor, and had no vested interest in the real estate, they could not maintain a partition action. Trenholm v. Trenholm, 701 S.W.2d 209, 212 (Mo.Ct.App.1985).

New York’s highest court has held that, when partition is sought pursuant to the sale of real property, only a vendee who possesses legal title to real property may maintain a partition action. Gifford v. Whittemore, 4 A.D.2d 379, 165 N.Y.S.2d 201, 204-05 (N.Y.A.D. 3 Dept.1957). Because legal title remains in the vendor after a real-estate contract is signed, the equitable interest of the vendee obtained by equitable conversion is “not sufficient to sustain an action in partition.” Id. at 205. New York distinguishes the rights of vend-ees with legal title from those with equitable title, concluding that, for purposes of partition, “it is not enough that a person is entitled to a conveyance of an interest in real property which a court of equity could enforce.” Side v. Brenneman, 7 A.D. 273, 40 N.Y.S. 3, 6-7 (N.Y.A.D. 1 Dept.1896) (emphasis added). The vesting of legal title in such real property is a condition precedent to partition. Id.; see also 59A Am. Jur. 2d Partition § 29 (“Vendees under a land purchase agreement do not have an interest in real estate which may be subject to partition.”).

Our analysis of MinmStat. § 558.01, the caselaw of other states, and relevant treatises leads us to conclude that an equitable title, obtained pursuant to a purchase agreement with unfulfilled contingencies, constitutes an insufficient interest in real property to maintain a partition action. Because these unfulfilled contingencies exist, appellant’s equitable interest falls short of the standard necessary to demand conveyance of legal title. Likewise, the equitable interest here is distinguishable from the mature, choate interest in Searles that was necessary to support partition. In light of the inherent uncertainty created by the unmet contingencies that could preclude enforcement of the purchase agreement between appellant and James McCarthy, even appellant’s future entitlement to obtain legal title remains unresolved. We conclude that the inchoate, unvested, and contingent features of appellant’s equitable interest in the property preclude a legally sufficient basis for partition.

DECISION

We affirm the district court’s dismissal of appellant’s partition action for failure to state a claim on which relief could be granted. Neither the purchase agreement nor the subsequent settlement agreement with James McCarthy gives appellant a sufficient interest in real property to maintain a partition action. Because appellant’s equitable interest was contingent on fulfilling nine conditions that have not been satisfied, appellant does not have a choate, vested interest, which is necessary to maintain a partition action.

Affirmed.

      . On February 28, 2003, Patrick McCarthy, in his capacity as the personal representative of James McCarthy's estate, disallowed appellant's probate claim. Appellant challenged this disallowance, and the matter remains in probate. The probate claim is not the subject of this appeal.

      . In addressing who may demand partition, Tiffany on Real Property states that
      [o]rdinarily, one seeking partition must have an estate in possession, entitling him to enjoy the present rents or possession of the property as a cotenant thereof, and must be the owner of a vested undivided interest in the premises jointly, as a tenant in common or in co-parcenary with those against whom he seeks partition.
      2 Tiffany on Real Property 475 (3d ed. Supp. 2002) (emphasis added).


author: STEELE, Circuit Judge.

text:
    2003 SD 103
    FMB BankSHARES, INC., Plaintiff and Appellee, v. Douglas J. HAJEK, Defendant and Appellant.
    No. 22604.
    Supreme Court of South Dakota.
    Argued May 28, 2003.
    Decided Aug. 20, 2003.
    John S. Theeler of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, South Dakota, Attorneys for plaintiff and appellee.
    Steven W. Sanford of Cadwell, Sanford, Deibert & Garry, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   STEELE, Circuit Judge.

[¶ 1.] Douglas J. Hajek (Hajek) appeals a trial court judgment directing him to sell bank stock that he owns back to FMB BankShares, Inc. (FMB), his former employer. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Hajek, a Sioux Falls lawyer with a banking background, was the sole shareholder of Bankers Resources, Inc. (BRI), a holding company. In November 1997, Ha-jek negotiated a series of transactions that culminated in an agreement to merge BRI into IMB, another holding company that owned the First Madison Bank (FMB). The purpose of the merger was to enable FMB to expand to include a Sioux Falls branch with trust services. Hajek was to be primarily responsible for the development and management of the Sioux Falls branch. As a result of the merger, Hajek received 1,615 shares of FMB common stock with an option to purchase additional shares.

[¶ 3.] The final agreement was negotiated primarily between Hajek and Dan A. Culey, the CEO of FMB. The written agreement consisted of two documents, both dated December 23, 1997. The primary document was entitled “Memorandum and Agreement,” and contained the following paragraph relating to redemption of Hajek’s shares of stock:

4. Redemption of Shares
(a) Except as otherwise agreed by the parties, if Hajek’s employment with the Combined Organizations shall at any time be terminated, either voluntarily or involuntarily, Hajek shall have the option to require that FMB redeem all shares held by Hajek at a price equal to the greater of a bona fide third party offer or the appraised value as determined annually for FMB’s ESOP evaluation. Ha-jek shall notify FMB of his exercise of this option within 90 days following the termination of Hajek’s employment with the Combined Organizations.

[¶ 4.] The second document was an addendum entitled “Agreement.” The pertinent part of its preliminary statement provided:

[T]he parties hereto wish to clarify the price at which Hajek’s shares of FMB BankShares, Inc. stock are to be redeemed by FMB pursuant to paragraph 4 of the Memorandum of Agreement under certain circumstances.
NOW, THEREFORE, in consideration of the foregoing, it is understood and agreed as follows:
1. Notwithstanding the provisions of paragraph 4 of the Memorandum and Agreement, in the event Hajek voluntarily resigns his position, or if his employment described in the Memorandum of Agreement is terminated “for cause,” FMB shall redeem all of Hajek’s shares received by Hajek pursuant to paragraph 4(b)(i) [sic] at the following redemption price .... “[here followed a recital of prices to be received in each of the calendar years 1998 through 2002 and beyond].

[¶ 5.] Hajek and Culey subsequently had a falling out and Hajek resigned his employment effective January 31, 2000. FMB initially offered to buy all of Hajek’s FMB stock for $100, claiming an offset from the balance of the purchase price called for in the contract because of an alleged tort or breach of contract claim against Hajek Hajek refused the offer. FMB then made another offer, but again for less than the contract price. Hajek again refused. FMB then offered the full contract price for the stock, but Hajek still refused contending that, under the terms of the contract, FMB had no right to demand that he sell it his stock.

[¶ 6.] FMB then brought this action for a declaratory judgment. FMB claimed that the addendum created a mandatory redemption provision requiring Hajek to sell and FMB to buy his shares at the contract price if Hajek voluntarily resigned. The trial court agreed and granted FMB’s motion for a judgment on the pleadings.

[¶ 7.] Several issues are raised on appeal, but our ruling on the first issue is dispositive.

ISSUE

[¶ 8.] Do the contract documents, when construed as a whole, provide for a mandatory redemption of Hajek’s stock by FMB?

STANDARD OF REVIEW

[¶ 9.] The matter under review is a matter of contract construction which is a question of law and fully reviewable. Nelson v. Schellpfeffer, 2003 SD 7, ¶ 7, 656 N.W.2d 740, 743; Parker v. Western Dakota Insurors, Inc., 2000 SD 14, ¶7, 605 N.W.2d 181, 184. On appeal, this Court can read a contract without a presumption in favor of the trial court’s determination and is to give effect to the unambiguous language and terms of the contract. Cotton v. Manning, 1999 SD 128, ¶ 15, 600 N.W.2d 585, 588.

Construction of the contract

[¶ 10.] In determining the proper construction of a contract, a court is to ascertain and give effect to the intention of the parties. All of the contract provisions must be given meaning if that can be consistently and reasonably done. Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 14, 604 N.W.2d 289, 293; Hisgen v. Hisgen, 1996 SD 122, ¶4, 554 N.W.2d 494, 496. “[W]hen two or more instruments are executed at the same time by the same parties, for the same purpose and as part of the same transaction, the court must consider and construe the instruments as one contract. It is, however, the intent of the parties that controls.” GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 444 (S.D.1983) (citations omitted). Accord Talley v. Talley, 1997 SD 88, ¶ 22, 566 N.W.2d 846, 851.

[¶ 11.] The parties agree that, according to the primary document, only Ha-jek is given the power to demand that FMB purchase his stock in the event of his termination. The dispute arises out of the language in the addendum. Hajek contends that the preliminary statement in the addendum clearly amends only the price at which his stock must be purchased and that nowhere in its recitals does it grant FMB the right to demand redemption. FMB focuses on the language in the addendum stating that “Notwithstanding the provisions of paragraph 4 of the Memorandum of Agreement ... FMB shall redeem all of Hajek’s shares ... at the following redemption price.” FMB contends that this language effectively turns Hajek’s stock redemption option in the primary document into a mandatory buy-sell arrangement. We disagree with FMB’s construction of this language.

[¶ 12.] The preliminary statement in the addendum sets forth the subject of the paragraph. It clearly and unambiguously limits the subject to clarification of the price Hajek is to receive for his shares under certain circumstances. The later language merely sets forth what the redemption price is to be under those circumstances. There is nothing whatsoever in this language granting FMB the right to demand redemption.

[¶ 13.] The language of the addendum is clear within its four corners. It does not create buy-sell duties for FMB and Hajek. It merely dictates the price to be paid for the stock under certain circumstances. Hajek did not exercise his option under paragraph 4(a) of the primary agreement within 90 days following his termination of employment. As a result, he remains the owner of the stock.

[¶ 14.] Because of our holding on this issue, we do not reach the remaining issues. The judgment of the trial court is reversed and we remand with instructions for the trial court to enter a judgment consistent with this decision.

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

[¶ 16.] STEELE, Circuit Judge, for ZINTER, Justice, disqualified.

      . These claims were never pursued.

      . The language provides that "FMB shall redeem all of Hajek’s shares received by Hajek
        ... at the following redemption price [.] ” The emphasized phrase modifies the verb "redeem.” The structure of this sentence cannot be construed to mandate that FMB must purchase Hajek’s stock.


author: ZINTER, Justice. GILBERTSON, Chief Justice

text:
    2003 SD 104
    COOPERATIVE AGRONOMY SERVICES, A cooperative association, Plaintiff and Appellee, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Defendant and Appellant.
    No. 22264.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Aug. 20, 2003.

      Carlyle E. Richards of Richards & Oliver, Aberdeen, South Dakota, Attorneys for plaintiff and appellee.
    Harvey M. Crow, Jr., Department of Revenue, Rapid City, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] The South Dakota Department of Revenue (Department) assessed sales tax on a fertilizer storage service Cooperative Agronomy Services (CAS) provided other cooperatives. The circuit court reversed the assessment on appeal, and we reverse.

FACTS

[¶2.] CAS is a cooperative association located in Groton, South Dakota. CAS was incorporated by approximately twelve North and South Dakota locally owned cooperatives. According to the articles of incorporation, CAS’ purpose was to reduce “the member cooperatives’ costs through joint action in purchasing and distributing supplies such as fertilizer, chemicals and other merchandise and personal property.” To facilitate that purpose, CAS owns and operates a warehouse, railroad siding, and related personal property. It also has its own employees and payroll.

[¶ 3.] The business activity at issue is the fertilizer storage CAS provides for its member cooperatives. CAS does not purchase, own, sell, or deliver the fertilizer, and it is not involved in billing for the fertilizer it stores. CAS merely operates a warehouse for the other cooperatives’ fertilizer. Each member cooperative purchases fertilizer and has it delivered to CAS’ storage facility. Upon delivery, CAS unloads and stores the fertilizer. When a member cooperative subsequently sells fertilizer to its farm customer, the member cooperative makes arrangements to have the fertilizer transported from CAS’ warehouse to the farm customer. The transportation occurs either through the use of the member cooperatives’ own trucks or through other commercial truckers.

[¶ 4.] To pay for this storage service, the member cooperatives pay CAS a “$6 per ton through-put fee.” In December 1998, at the insistence of the Department, CAS began paying sales tax on the $6 fee. In October 2000, CAS applied for a refund of the sales taxes it had paid. The Department denied CAS’ refund request.

[¶ 5.] Following the denial, CAS appealed the Department’s decision to circuit court. The circuit court held that the fertilizer storage service was entitled to a sales tax exemption for “agricultural services.” The court concluded that the storage was classified as “agricultural services” under SDCL 10-45-12.1 and major group 07 of the 1987 Standard Industrial Classification Manual (SICM). The trial court reasoned:

By and through their members, CAS is involved in agricultural services. Ce-nex/Land O’Lakes Coops are agricultural cooperatives made up of local farmers. Most of the sales by and services provided by the coops are agricultural in nature. Therefore, the end transaction by CAS can only be agricultural, as the product stored [fertilizer] at the facility is only agricultural. The Court finds that because the end “transaction” of CAS is an agricultural service, CAS is classified under Major Group 07 for taxation purposes.

(emphasis added). The trial court emphasized that “CAS is classified under Major Group 07, as an [exempt] agricultural service, not because the service they provide is necessarily agricultural, but because the companies, which own or make up CAS, are solely agricultural.” Thus, the trial court looked at the end transaction and activity performed by the member cooperatives that incorporated CAS, rather than focusing on the predominate activity of, and the separate transaction in which CAS was involved. Although the circuit court acknowledged the “predominate activity and separate transaction” test of Watertown Coop. Elevator Association v. South Dakota Department of Revenue, 2001 SD 56, ¶ 12, 627 N.W.2d 167, 172, the court appears to have distinguished that case by finding that CAS was an “auxiliary establishment” of each of the member cooperatives. Under the SICM, auxiliary establishments are given the same classification as the enterprise for which they provide the service. Thus, under the trial court’s reasoning, CAS’ storage service could be taxed as if it were the member cooperatives’ exempt sale of agricultural fertilizer to farm customers. The Department appeals.

ISSUE

Whether CAS’ fertilizer storage service is exempt from sales tax.

STANDARD OF REVIEW

[¶ 6.] Our standard of review is set forth in Graceland College Center v. South Dakota Department of Revenue, 2002 SD 145, ¶ 5, 654 N.W.2d 779, 782.

Our standard of review, delineated in SDCL 1-26-36, requires us to give great weight to the findings and inferences made by the Department on factual questions. We examine agency findings in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course, are fully reviewable.
[WJhether a statute imposes a tax under a given factual situation is a question of law. Statutes which impose taxes are to be construed liberally in favor of the taxpayer and strictly against the taxing body. Statutes exempting property from taxation should be strictly construed in favor of the taxing power. The words in such statutes should be given a reasonable, natural, and practical meaning to effectuate the purpose of the exemption.

Id. (citations omitted).

DECISION

[¶ 7.] We first determine whether CAS is classified as an “auxiliary” of each member cooperative and therefore entitled to the member cooperatives’ end use exemption for the sale of agricultural fertilizer. If CAS is not entitled to the member cooperatives’ classification, we must then determine whether CAS is entitled to any other tax exemptions for its fertilizer storage service.

I.

CAS was not entitled to an exemption as an auxiliary of each member cooperative.

[¶ 8.] A sales tax is imposed on services. SDCL 10-45-4 provides:

There is hereby imposed a tax at the same rate as that imposed upon sales of tangible personal property in this state upon the gross receipts of any person from the engaging or continuing in the practice of any business in which a service is rendered. Any service as defined by § 10-45-4.1 shall be taxable, unless the service is specifically exempt from the provisions of this chapter.

(emphasis added). CAS is a legal business entity (a cooperative) that is performing a service that is generally subject to tax. However, the exemption applied by the circuit court is found in SDCL 10-45-12.1, which provides in part:

The following services enumerated in the Standard Industrial Classification Manual, 1987, as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President are exempt from the provisions of this chapter: ... agricultural services (major group 07)....

Under these statutes, we generally “use the predominant activity test in deciding if services [are] subject to sales tax. We have also emphasized that ‘determinations of taxability should focus on the transaction.’ ” Watertown Coop., 2001 SD 56, ¶ 12, 627 N.W.2d at 172 (further citations omitted).

[¶ 9.] The Department contends that Watertown Coop controls this case. The Department argues that like Watertown Coop, there are two separate transactions involved: 1) CAS’ fertilizer storage; and 2) individual cooperatives’ sales of fertilizer. The Department contends that even if the end transaction of individual cooperatives involves exempt sales of agricultural fertilizer, CAS’ business activity is a separate taxable transaction involving fertilizer storage.

[¶ 10.] Like the taxpayer in Watertown Coop, CAS responds that the storage transaction is only one step in the sale of fertilizer: a sale starting with the manufacturer and ending with the farm customer. Under CAS’ interpretation, there is only one relevant transaction: the sale of fertilizer, and that transaction is exempt because the fertilizer is ultimately used for agricultural purposes. See SDCL 10-45-12.1; 10-45-16.

[¶ 11.] The trial court appears to have adopted CAS’ argument. In doing so, it distinguished Watertown Coop by concluding that CAS was an “auxiliary” of each member cooperative. That distinction is valid only if CAS qualifies as an auxiliary unit of the other cooperatives under the SICM because the SICM classification is specifically incorporated into the exemption statute, SDCL 10-45-12.1.

[¶ 12.] According to the 1987 SICM, “auxiliaries” are establishments that perform “services for other establishments of the same enterprise ” and, “[a]n enterprise consists of all establishments having more than 50 percent common direct or indirect ownership.” SICM 13 (1987). (emphasis added). However, CAS failed to prove that there is more than 50 percent common ownership between any member cooperative and CAS. In fact, that likelihood appears impossible because twelve or more cooperatives each claim to be members of the CAS cooperative leaving no one cooperative with more than 50 percent ownership of CAS.

[¶ 13.] Consequently, CAS is not entitled to the “auxiliary” classification, and we conclude that this case is governed by the predominate activity and separate transaction test utilized in Watertown Coop., 2001 SD 56, 627 N.W.2d 167. In Watertown Coop, the taxpayers sold agronomy products to farmers and ranchers. In addition to the sales of agronomy products, the taxpayers’ distributors, as part of a separate contract with the taxpayers, provided the farmers and ranchers with production specialists to advise them on which products to buy and how best to use them. Id. ¶ 2. The service was provided at no charge to the farmer/rancher who purchased the taxpayers’ products. Id. ¶ 3. The taxpayers did, however, reimburse the distributors for the actual expenses incurred in providing the service. Id. ¶ 2. This Court held that the service provided by the production specialist was a separate taxable transaction from the exempt sale of the agronomy products. Id. ¶ 12.

[¶ 14.] The same rule applies here. Like Watertown Coop, this case involves two separate transactions. One transaction involves the fertilizer storage activity of CAS. The other transaction involves the sale of fertilizer by the other cooperatives. Because the storage service is the predominate activity of CAS, and because that activity is a separate and distinct transaction from the other cooperatives’ subsequent sales of fertilizer, the storage service is subject to the service tax under Watertown Coop and SDCL 10-45-4.

[¶ 15.] Having determined that the predominate activity of CAS is a taxable service under SDCL 10-45-4, we next determine whether that service is entitled to a tax exemption.

II.

CAS’ fertilizer storage service was not exempt from the sales tax under SDCL 10-45-12.1.

[¶ 16.] CAS contends that even if it is not an “auxiliary,” its fertilizer storage is an exempt “farm product warehousing and storage” service or an exempt “agricultural service” under another provision in SDCL 10-45-12.1. As previously noted, that statute exempts services enumerated in the Standard Industrial Classification Manual, 1987. The other exempted services include “agricultural services (major group 07) ... [and] farm product warehousing and storage (industry no. 4221)....” SDCL 10-45-12.1 (emphasis added). We analyze these two claimed exemptions separately.

A.

CAS was not engaged in “farm product warehousing and storage” under SICM industry no. 4221.

[¶ 17.] “Farm product warehousing and storage,” under SDCL 10-45-12.1, refers to SICM subgroup 4221, which includes “[e]stablishments primarily engaged in the warehousing and storage of farm products.” SICM, at 271. The SICM identifies “bean elevators,” “grain elevators” and “farm product warehousing and storage ...” as examples of enterprises that fall within that classification. Id. So also, major group 42, of which subgroup 4221 is a part, “includes establishments ... engaged in the storage of farm products.” Id. at 270. However, “farm products” are not further defined.

[¶ 18.] Because neither the SICM nor SDCL ch 10-45 defines “farm products,” the parties rely on definitions of that phrase found in different versions of Article 9 of the Uniform Commercial Code. CAS relies on the post-July 2001 definition codified in SDCL 57A-9-102(34), while the Department relies on the pre-July 2001 definition codified in SDCL 57A-9-109(3). However, based upon our decision in Wharf Resources, Inc. v. Farrier, 1996 SD 110, 552 N.W.2d 610, we reject both parties’ use of the UCC to define the “farm products” that are exempt from sales tax under SDCL 10-45-12.1.

[¶ 19.] In Wharf Resources, we considered an analogous argument that the taxa-bility of a “mine” should be determined by the definition of a “mine” in SDCL 43-1-5, an unrelated general statute describing real property and property that is appurtenant to land. We rejected the use of such an unrelated statute to determine a tax exemption, stating:

In matters of statutory interpretation, statutes of specific application take precedence over statutes of general application. SDCL 10-4-2 and 10-6-35 [on taxation] are statutes of specific application. SDCL 43-1-5 is a statute of general application, intended to aid in determining which of those items commonly associated with a mine would be deemed appurtenant to the land. There -is no corresponding definition of “mine” contained in the South Dakota taxation statutes found under SDCL 10-4-2. and 10-6-35.
If the legislature intended such equipment to be included in the statutes regarding the taxation of mines, it could have expressed that intention in the statutes. It did not do so.

Wharf Resources 1996 SD 110, ¶¶ 42-43, 552 N.W.2d at 617-618 (internal footnotes and citations omitted). Although we recognize that Wharf Resources involved imposition of — rather than exemption from— a tax, the principle of general application versus specific application in statutory construction remains applicable.

[¶ 20.] As in Wharf Resources, we do not believe that the Legislature intended that the UCC definition of “farm products” would also determine which “farm product warehousing and storage services” are exempt from sales taxation under SDCL ch 10-45. After all, SDCL ch 57A-9 regulates the procedure and rights of debtors and creditors engaged in secured transactions, a purpose wholly unrelated to sales taxation. We therefore conclude that the UCC definition of farm products in SDCL ch 57A-9 does not control the services taxed under SDCL ch 10-4.

[¶ 21.] Because we have not been cited to any fact-specific case resolving this issue, we look to Black’s Law Dictionary for guidance. Excluding the UCC definition, Black’s defines “farming products” as products that are produced on the farm, by farm labor:

All things are considered as “farming products” or “agricultural products” which have a situs of their production upon the farm and which are brought into condition for uses of society by labor of those engaged in agricultural pursuits as contradistinguished from manufacturing or other industrial pursuits.

Black’s Law Dictionary 607 (6th ed. 1990).

[¶22.] Bulk fertilizer is not a farm product in this sense because it does not have its situs of production on the farm. Furthermore, bulk fertilizer is not produced by the “labor of those engaged in agricultural pursuits,” but would be more accurately described as produced by those engaged in manufacturing and industrial pursuits. Therefore, we conclude that CAS did not provide an exempt “farm product” warehousing and storage service under SDCL 10-45-12.1 and SICM industry no. 4221.

B.

CAS was not engaged in “agricultural services” under SICM major group 07.

[¶ 23.] CAS next argues that its fertilizer storage involved “agricultural services” under SDCL 10-45-12.1 and SICM major group 07. According to the SICM, agricultural services under major group 07, “includes establishments primarily engaged in performing soil preparation services, crop services, veterinary services, other animal services, farm labor and management services, and landscape and horticultural services, for others on a contract or fee basis.” SICM, at 31. CAS contends that its service falls within “soil preparation services,” under SICM industry group no. 0711, and “crop planting, cultivating, and protecting” under industry group no. 0721.

[¶24.] We first address CAS’ reliance on industry group no. 0711, “soil preparation services.” The SICM describes soil preparation services as “land breaking, plowing, application of fertilizer, seed bed preparation, and other services for improving the soil for crop planting.” Id. (emphasis added). CAS contends that its services should be considered “chemical treatment of soil for crops,” which the SICM lists as an example of “soil preparation services.” However, CAS is not engaged in the application of fertilizer or chemical treatment of the soil. Instead, CAS merely provides a fertilizer storage service.

[¶ 25.] CAS’ reliance on industry group no. 0721, “crop planting, cultivating, and protecting,” is also misplaced. The relevant SICM example of this activity is “planting crops, with or without fertilizer.” Id. CAS contends that its service should be considered crop planting. Again, however, there is no evidence that CAS is involved in planting crops. CAS’ only activity is fertilizer storage for other cooperatives. That service does not qualify under industry group nos. 0721 or 0711.

CONCLUSION

[¶ 26.] We conclude that the trial court erred in analyzing CAS as an auxiliary of other cooperatives. Moreover, the fertilizer storage service provided by CAS is a separate transaction from the fertilizer sales made by each of the other cooperatives. Because the fertilizer storage service is not tax exempt, we reverse.

[¶ 27.] SABERS and KONENKAMP, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 28.] GILBERTSON, Chief Justice, concurs in result.

GILBERTSON, Chief Justice

(concurring in result).

[¶ 29.] I agree with this Court that factually, the CAS fertilizer storage service is not exempt from South Dakota sales tax. However, this Court’s reliance upon Watertown Coop. Elevator Association v. South Dakota Department of Revenue, 2001 SD 56, 627 N.W.2d 167, causes me to concur only in result. I continue to believe that Watertown Coop was improperly decided by this Court for the reasons set forth in my dissent. Watertown Coop., 2001 SD 56, ¶ 20, 627 N.W.2d at 173 (Gilbertson, J., dissenting).

      . SDCL 10-45-16 creates a tax exemption for the gross receipts from the sale of commercial fertilizer used exclusively for agricultural purposes. It provides:
      There are hereby specifically exempted from the provisions of this chapter and from the computation of the amount of tax imposed by it, gross receipts from the sale of commercial fertilizers, either liquid or solid, when five hundred pounds or more are sold in a single sale to be used exclusively for agricultural purposes.

      . CAS and the member cooperatives are independent legal entities (cooperatives). See SDCL ch 47-15. CAS has not argued it is a more than 50 percent owned subsidiary of any other cooperative. Moreover, CAS is physically separated from the business locations of the members, and it does not share building space, employees or expenses with the others. Furthermore, CAS owns its own warehouse facility, railroad siding and personal property. Finally, CAS does not purchase, own, sell, deliver or bill for fertilizer. CAS simply stores fertilizer for a fee.

      .Although Watertown Coop involved the use tax, that distinction is not material here.

      . SDCL 43-1-5 provides in relevant part: "Sluice boxes, flumes, hose, pipes, railway tracks, cars, blacksmith shops, mills, and all other machinery or tools used in working or developing a mine, are to be deemed affixed to the mine.”

      . Prior to July 2001 (the relevant time in which the tax was assessed in the present case) SDCL 57A-9-109(3) provided that goods are "farm products" if:
      ... they are crops or livestock or supplies used or produced in farming operations or if they are products of crops or livestock in their unmanufactured states (such as ginned cotton, wool clip, maple syrup, milk and eggs), and if they are in the possession of a debtor engaged in raising, fattening, grazing or other farming operations. If goods are farm products they are neither equipment nor inventory.
      (emphasis added). This emphasized language of SDCL 57A-9-109(3) reveals that the Legislature only intended the UCC definition of "farm products” to apply to UCC transactions. This conclusion is illustrated by the unique restriction on the definition that limits "farm products” to those "in the possession of a debtor” engaged in farming operations. We can discern no reason why the Legislature would have intended that the taxability of farm product storage services should turn on whether the product is, "in the possession of a debtor.” It also appears that this restricted definition would disqualify CAS from the farm product exemption.

      . Black's Law Dictionary 7th edition only provides the UCC definition of "farm products.” Therefore, we rely on Black’s Law Dictionary, 6th edition.


author: MEIERHENRY, Justice.

text:
    2003 SD 102
    STATE of South Dakota, Plaintiff and Appellant, v. David J. ASMUSSEN, Defendant and Appellee.
    No. 22632.
    Supreme Court of South Dakota.
    Argued May 28, 2003.
    Decided Aug. 20, 2003.
    Rehearing Denied Sept. 29, 2003.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, for plaintiff and appellant.

      Rick A. Ribstein, Donald M. McCarty of McCann, Ribstein & Hogan, Brookings, South Dakota, for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] The State filed a complaint against David J. Asmussen (Asmussen) for three counts of stalking. The second count of the complaint charged that As-mussen committed the public offense of stalking (SDCL 22-19A-l(3) and 22-6-2(1)) by willfully, maliciously, and repeatedly harassing Pamela Dunn by means of verbal, electronic, mechanical, telegraphic, or written communications. As-mussen filed a motion to dismiss count II of the complaint asserting that SDCL 22-19A-1(3) is facially unconstitutional. The trial court granted Asmussen’s motion and dismissed count II of the complaint finding that SDCL 22-19A-l(3) is overbroad on its face and unconstitutionally vague in violation of both the First and Fourteenth Amendments of the United States Constitution and the South Dakota Constitution, Article VI § 2. No fact finding hearing or trial took place. The State’s intermediate appeal from the order was granted on the following issues:

1. Whether SDCL 22-19A-K3) is unconstitutionally overbroad in violation of the First Amendment to the United States Constitution.
2. Whether SDCL 22-19A-K3) is unconstitutionally vague in violation of the Fifth and Fourteenth Amendment to the United States Constitution and Article VI, § 2 of the South Dakota Constitution.

STANDARD OF REVIEW

[¶2.] Challenges to the constitutionality of a statute are reviewed de novo. State v. Allison, 2000 SD 21, ¶ 5, 607 N.W.2d 1, 2. This Court recognizes a strong presumption that a statute is constitutional. Id. In order to prevail, a challenger must refute this presumption beyond a reasonable doubt. State v. McGill, 536 N.W.2d 89, 94. “While legislative acts are presumed to be constitutional, that presumption disappears when the unconstitutionality of the act is, ‘clearly and unmistakenly shown and there is no reasonable doubt that it violates constitutional principles.’ ” South Dakota Educ. Association/NEA By and Through Roberts v. Barnett, 1998 SD 84, ¶ 22, 582 N.W.2d 386, 392 (quoting Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994)).

DECISION

1. Whether SDCL 22-19A-H3) is unconstitutionally overbroad in violation of the First Amendment to the United States Constitution.

[¶ 3.] The State of South Dakota argues that Asmussen lacks standing to raise the issue of whether the statute is unconstitutionally vague and overbroad.

Though interrelated, the concepts of vagueness and overbreadth are conceptually distinct doctrines. Vagueness is usually associated with the right to due process found in the Fifth and Fourteenth Amendments, whereas over-breadth is concerned with the First Amendment guarantees of free speech.

State v. Hauge, 1996 SD 48, ¶ 5, 547 N.W.2d 173, 175. First, we will address whether Asmussen has standing to challenge the constitutionality of the statute under the doctrine of overbreadth. A statute is overbroad when its language sanctions conduct which the state is not entitled to regulate. An overbroad statute “not only forbids conduct constitutionally subject to proscription, but also sweeps within its ambit those actions ordinarily deemed to be constitutionally protected.” People ex rel P.B., 339 N.W.2d 121, 123 (S.D.1983). Asmussen does not claim that he was engaging in constitutionally protected activity. Asmussen challenges the provision of the statute under which he was charged as unconstitutionally over-broad. Normally, a facial challenge to a statute is not allowed unless the challenger’s own conduct involves constitutionally protected expression. An exception to this is when a party challenges a statute based on the doctrine of overbreadth. The doctrine of overbreadth allows the court to consider the effect of a statute on third parties, regardless of whether the challenger’s right of free expression was violated. The United States Supreme Court recently reiterated the basis of allowing a facial challenge to a statute based on the First Amendment doctrine of overbreadth:

The First Amendment doctrine of over-breadth is an exception to our normal rule regarding the standards for facial challenges, (citation omitted). The showing that a law punishes a “substantial” amount of protected free speech, “judged in relation to the statute’s plainly legitimate sweep,” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908[, 2918], 37 L.Ed.2d 830[, 842] (1973), suffices to invalidate all enforcement of that law, “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.” Id. at 613[, 93 S.Ct. at 2916, 37 L.Ed.2d at 840-41] (citations omitted).
We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or “chill” constitutionally protected speech — especially when the overbroad statute imposes criminal sanctions, (citations omitted). Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-
by-ease litigation, will choose simply to abstain from protected speech, Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22[, 28-29] (1965) — harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.

Virginia v. Hicks, — U.S. -, -, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148, 157 (2003). Courts acknowledge that a litigant has standing to challenge a statute if the court can predict or assume “that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916, 37 L.Ed.2d at 840.

[¶ 4.] The relevant portions of the law which Asmussen challenges are as follows:

Any person:

(3)[w]ho willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication; is guilty of the crime of stalking. SDCL 22-19A-1(3).
For purposes of this chapter, “harasses” means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. SDCL 22-19A-4.
For purposes of this chapter, “course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.” SDCL 22-19A-5.

For purposes of the standing issue, the language of the statute with its criminal sanctions could conceivably cause others to refrain from constitutionally protected speech. Asmussen, therefore, has standing to challenge the statute on its face even though his speech or conduct may not be constitutionally protected.

[¶ 5.] In addressing the merits of the challenge, we recognize that to invalidate a law as overbroad is “strong medicine” because it has the effect of suspending enforcement of the entire law. New York v. Ferber; 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113, 1130 (1982) (citing Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916, 37 L.Ed.2d at 840). The doctrine is employed with hesitation and “only as a last resort.” Id. The effect of suspending enforcement of the entire law could result in preventing enforcement in situations of constitutionally unprotected speech or, more importantly, in situations of constitutionally unprotected conduct. Id. For a finding of overbreadth, the law’s application to protected speech must be “real” and “substantial,” not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate application. Id. To strike a law for overbreadth it must reach “a substantial number of impermissible applications.” Id. at 771, 102 S.Ct. at 3362, 73 L.Ed.2d at 1132.

[¶ 6.] Under the overbreadth doctrine, Asmussen has the burden of establishing “ ‘from the text of [the law] and from actual fact,’ that substantial over-breadth exists.” Hicks, — U.S. at -, 123 S.Ct. at 2198, 156 L.Ed.2d at 159 (quoting New York State Club Ass’n., Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 2234, 101 L.Ed.2d 1, 17 (1988)). In order to meet that burden, Asmussen must show that the law’s application to constitutionally protected speech is “real” and “substantial” in an absolute sense and in relation to the scope of the law’s plainly legitimate application.

[¶ 7.] An analysis of the law’s constitutionality begins by examining the text of the statute to determine its application and scope. First of all, it is apparent the legislature intended to exclude the law’s application to “constitutionally protected activity.” SDCL 22-19A-5. Although the statute prohibits harassment by “means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication,” it is not directed at freedom of expression normally protected by the First Amendment. Cf. State v. Springer-Ertl, 2000 SD 56, 610 N.W.2d 768; State v. Crelly, 313 N.W.2d 455 (S.D.1981). The scope of the statute does not sweep free expression of ideas into its scope. Furthermore, the statute is limited in scope to a willful, malicious, and repeated course of conduct specifically directed at another person. SDCL 22-19A-l(3). The statute further limits the course of conduct to conduct serving no legitimate purpose. SDCL 22-19A-4. Also there is no showing that the law would reach substantial numbers of impermissible applications. In addition to the language of the statute, it is also necessary to view the legislative purpose of the law.

[¶ 8.] The law’s plainly legitimate purpose is to, protect people from being stalked. We determined in State v. Hauge that the State has a legitimate interest in “shielding] victims of domestic violence from threats and intimidation.” 1996 SD 48, ¶ 8, 547 N.W.2d at 176. In Hauge, we found that a protection order entered against Hauge prohibiting him from verbally contacting his ex-wife in any manner including phone contact or through third parties was not unconstitutionally over-broad. We held that the restraint upon Hauge’s conduct did not fall within the ambit of First Amendment protection. Id. at ¶ 10; cf. State v. Vogel, 815 N.W.2d 324 (S.D.1982).

[¶ 9.] The legislature has recognized that stalking is a serious concern of society. The legislature, therefore, has a legitimate interest in protecting those who are harassed and placed in serious fear for their safety. We have previously stated freedom of expression does not include threatening or harassing conduct:

Freedom of expression, however, is not absolute. It was never meant “to give immunity for every possible use of language.” Frohwerk v. United States, 249 U.S. 204, 206, 39 S.Ct. 249, 250, 63 L.Ed. 561, 564 (1919) (citation omitted). See State v. Hauge, 1996 SD 48, ¶ 10, 547 N.W.2d 173, 176. One is not free, for example, to send threatening or harassing letters. Id., ¶¶ 9-10. Nor has anyone the right to make obscene telephone calls. State v. Crelly, 313 N.W.2d 455, 457 (S.D.1981).

State v. Springer-Ertl, 2000 SD 56, ¶ 17, 610 N.W.2d at 773. We, therefore, conclude that, the stalking statute’s application to protected speech is not “real” or “substantial” in an absolute sense nor in relation to the scope of-the law’s plainly legitimate application. Asmussen’s facial challenge on the basis of overbreadth fails.

2. Whether SDCL 22-19A-l(3) is unconstitutionally vague in violation of the Fifth and Fourteenth Amendment to the United States Constitution and Article VI § 2 of the South Dakota Constitution.

[¶ 10.] Asmussen also claims that the statute is void for vagueness. As we have previously stated, the overbreadth doctrine and void for vagueness doctrine are interrelated but “conceptually distinct doctrines.” Hauge, 1996 SD 48, ¶ 5, 547 N.W.2d at 175. While the overbreadth doctrine is based on the free speech rights of the First Amendment, the void for vagueness doctrine is based on the due process protection of the Fifth and Fourteenth Amendment of the United States Constitution and Article VI § 2 of the South Dakota Constitution. As a general rule, a void for vagueness review is limited to the specific facts of the case. People ex rel. T.F., 339 N.W.2d 124, 125 (S.D.1983); State v. Morrison, 341 N.W.2d 635, 637 (S.D.1983), cf. Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319-20, 46 L.Ed.2d 228, 233-34 (1975). The standard for a void for vagueness claim in violation of due process is whether “the prohibited act or omission is expressed in terms so vague that reasonable people of ordinary intelligence might apply [it] differently....” Matter of Reif, 478 N.W.2d 815, 818 (S.D.1991) (citing State v. Big Head, 363 N.W.2d 556, 559 (S.D.1985)). A statute will be held unconstitutional for vagueness where the forbidden conduct is so poorly defined that persons of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Blakey, 399 N.W.2d 317, 318 (citing Connolly v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926)) (citations omitted).

A crime must be statutorily defined with definiteness and certainty. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. A criminal statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.

Big Head, 363 N.W.2d at 559. Additionally, a statute must not be so vague as to permit selective or discriminatory enforcement. Id.; Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 908-09 (1983); Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605, 612 (1974); Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214, 217-18 (1971). We recognize that criminal laws represent a legislative balancing act. In an attempt to prohibit certain conduct, the legislature writes laws in a fashion to give broad application to the type of conduct it seeks to forbid. State v. Dale, 439 N.W.2d 98, 106 (S.D.1989).

[¶ 11.] Asmussen claims that the statutory section under which he was charged is unconstitutionally vague because the statute failed to incorporate an objective standard, i.e. a reasonable person standard, in relation to the alleged harassment. As-mussen relies on similar challenges in other states whose courts have found that a reasonable person standard is necessary to withstand a constitutional challenge for vagueness. See Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975); Kansas v. Bryan, 259 Kan. 143, 910 P.2d 212 (1996); Galloway v. Maryland, 365 Md. 599, 781 A.2d 851 (2001); Long v. Texas, 931 S.W.2d 285 (Tex.Crim.App.1996); City of Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617 (1984). Through a series of amendments, the South Dakota legislature eliminated the reasonable person language from parts of the stalking statutes. When the South Dakota legislature first enacted stalking statutes in 1992, the statutes contained the reasonable person standard, that is, the victim’s fear or emotional distress was that of a reasonable person, i.e. an objective standard. The legislature by amendment removed the reference to a reasonable person in parts of the statute. The 1992 statutes included the following language:

Section 22-19A-1. Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear of death or great bodily injury is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.
Section 22-19A-4. For the purposes of this Act, “harasses” means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the person.
Section 22-19A-6. For the purposes of this Act, “a credible threat” means a threat made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his safety.

1992 SD Laws Ch 162 (emphasis added). In 1993, the legislature amended the stalking statutes and struck the reasonable person standard from SDCL 22-19A-4 and 22-19A-6. 1993 SD Law Ch 176 § 1-5. The stalking statutes were amended again in 1994, 1997, 2000, and 2001. See 1994 SD Laws Ch 164; 1997 SD Laws Ch 131 & 132 and 2000 SD Laws Ch 101; 2001 SD Laws Ch 112.

[¶ 12.] The 2001 amendment under which Asmussen was charged provides in its entirety:

Any person:
(1) Who willfully, maliciously, and repeatedly follows or harasses another person; or
(2) Who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or
(3) Who willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, mechanical, telegraphic, or written communication; is guilty of the crime of stalking. Stalking is a Class 1 misdemeanor.

(Emphasis added). 2001 SD Laws Ch 112; SDCL 22-19A-1.

[¶ 13.] The State charged Asmussen under SDCL 22-19A-l(3). He claims that because that section does not contain a reasonable person standard and is based, instead, on the subjective reaction of the victim that the subsection is void for vagueness. Courts have reasoned that without the objective standard of a reasonable person, an individual cannot determine which conduct is against the law. The conduct may or may not fall within the criminal prohibition depending on the reaction or sensibilities of the victim. The subjective standard does not give fair notice if conduct is forbidden and can lead to discriminatory enforcement. See Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975); Kansas v. Bryan, 259 Kan. 143, 910 P.2d 212 (1996); Galloway v. Maryland, 365 Md. 599, 781 A.2d 851 (2001); Long v. Texas, 931 S.W.2d 285 (Tex.Crim.App.1996); City of Everett v. Moore, 37 Wash.App. 862, 683 P.2d 617 (1984).

[¶ 14.] With a vagueness challenge, it is necessary that we examine the facts of the case at hand. The court file in this case indicates that on August 25, 2000, circuit court judge Ronald Roehr entered a civil order of protection at the request of Pamela Dunn (the alleged victim in this case) against Asmussen. The order specifically prohibited Asmussen from contacting Dunn “directly or indirectly, in any manner.” The order was to be in effect until August 25, 2003.

[¶ 15.] The criminal charge against As-mussen alleges that he willfully, maliciously, and repeatedly harassed Pamela Dunn by means of verbal, electronic, mechanical, telegraphic, or written communications. An affidavit of Special Agent Jon Bierne (Bierne) attached to the complaint, stated that a check of Asmussen’s cellular telephone records revealed that Asmussen had made 17 telephone calls to Dunn’s residence from November 25, 2001 through December 8, 2001. Bierne further states that Asmussen left messages on her answering machine, at least three of which were threatening. Bierne also indicated that during an interview with Asmussen, Asmussen admitted being at Dunn’s residence on December 9, 2001.

[¶ 16.] For a due process challenge based on vagueness, Asmussen must demonstrate that the statute as it applied to the facts of his case was so vague that it did not “give a person of ordinary intelligence fair notice that his contemplated conduct [was] forbidden.” Here, a protection order had been in effect for over a year that clearly prohibited Asmussen from having any direct or indirect contact with Dunn. Prior to the court issuing the order, Asmussen had notice and opportunity to be heard. SDCL 22-19A-10. Furthermore, civil protection orders are based upon the definition of stalking found in SDCL 22-19A-1 — the same statute which gives rise to criminal liability. SDCL 22-19A-8(1).

[¶ 17.] Asmussen’s charged offense is that he telephoned Dunn. The protection order clearly prohibited contact in any manner. Because a civil protection order had been issued against Asmussen pursuant to the stalking statutes, his complaint that the criminal application of the statute was so vague he had to guess at its meaning is meritless. Any reasonably intelligent person could read the order and understand that Asmussen was to have no contact with Dunn by telephone or other means. The protection order also gave law enforcement clear direction of the prohibited conduct.

[¶ 18.] We cannot say that Asmussen’s conduct falls within the ambit of constitutional protection or, based upon the facts of this case, that SDCL 22-19A-l(3) is unconstitutionally vague.

[¶ 19.] We reverse the trial court’s ruling.

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