author: BASTIAN, Circuit Judge. MEIERHENRY, Justice

text:
    2004 SD 48
    Rebecca Jean KUEHL, Plaintiff and Appellant, v. HORNER (J.W.) LUMBER COMPANY, A South Dakota Corporation, Defendant, Third Party Plaintiff and Appellee, Lance Adam Warne and Kevin Schoenfelder, Third Party Defendants.
    No. 22777.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided April 7, 2004.

      Dennis C. McFarland, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.
    Michael L. Luce and Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for defendant, third party plaintiff and appel-lee.
   BASTIAN, Circuit Judge.

[¶ 1.] Rebecca Jean Kuehl (Kuehl) sued Horner Lumber Company, Inc., (Horner) claiming Horner employees negligently loaded or assisted the loading of a trailer with lumber thereby creating an overloaded condition that caused an accident that injured her. The trial court granted summary judgment in favor of Horner and entered a final judgment on the merits. Kuehl appeals. We reverse and remand.

FACTS

[¶ 2.] On January 17, 1998, Lance Warne (Warne) assisted his father-in-law, Kevin Schoenfelder (Schoenfelder) in hauling some scrap lumber that Schoenfelder had purchased from Horner. The sale was arranged by Schoenfelder’s father-in-law, Merle Haensel (Haensel). The lumber consisted of odds and ends that appeared to be left over or pulled out from loads because they were crooked, warped or weathered. Schoenfelder purchased trusses, shingles and boards of all dimensions.

[¶ 3.] Schoenfelder made arrangements for one trailer and two hayracks to be used to haul the lumber. Schoenfelder owned the trailer and brought it to Horner from his home in Renner. The trailer was approximately seventeen feet from the tongue to the end and seven feet wide.

[¶ 4.] Schoenfelder determined how the hayracks and the trailer would be loaded. The two hayracks were loaded first. Haensel provided instruction to the Hor-ner Lumber employee who used the forklift to load trusses onto one or both of the hay racks. The trailer was then hooked to Warne’s pickup and loaded with the remaining lumber. Some but not all of the lumber had previously been banded by Horner with metal bands. Some of the bands had been broken and many of the bands were not tight. Schoenfelder did not rely on the metal bands to hold the load together. It is disputed whether Warne and Schoenfelder loaded the lumber on the trailer by hand without assistance or whether they were assisted by Horner employees with or without the forklift,

[¶ 5.] After the trailer was loaded Warne and Schoenfelder secured the load with chains and nylon straps. The three vehicles left Horner at the same time. Warne was' driving his pickup and pulling the loaded trailer. They all proceeded north toward Sehoenfelder’s home in Ren-ner. Warne stopped to put air in the trailer tires allowing the others to proceed ahead.

[¶ 6.] The accident happened around 10:45 a.m. in rural Minnehaha County north of Sioux Falls. Kuehl was southbound on Highway 115 and Warne was northbound. Warne’s pickup and trailer began to fishtail after he hit a small bump. As he was fishtailing Warne saw Kuehl’s vehicle approaching just before the trailer struck her vehicle. After the impact Warne’s pickup and the trailer jackknifed and slid down into the ditch. The load remained intact on the trailer although some of the lumber had broken during the accident.

[¶ 7.] Kuehl suffered severe injuries as a result of the accident. Her claims against Warne and Schoenfelder were settled before this case commenced. They were named as third party defendants in this action for purposes of contribution and the claim was dismissed in the final judgment.

DECISION

[¶ 8.] This Court’s standard of review regarding a trial court’s grant or denial of summary judgment is well established:

Summary judgment is authorized ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.’ We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Dakota Pork Industries v. Huron, 2002 SD 3, ¶ 5, 638 N.W.2d 884, 885 (internal citations omitted). Kuehl argues that material issues of fact defeat Horner’s motion for summary judgment. The factual issues are discussed below.

ISSUE

[¶ 9.] Did Horner owe a duty to Kuehl?

[¶ 10.] “The three necessary elements of actionable negligence are: (1) a duty on the part of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff resulting from such a failure.” Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988). Before liability may be imposed on the theory of negligence there must be a duty on the part of the defendant to protect a plaintiff from injury. Clausen v. Aberdeen Grain Inspection, 1999 SD 66, 594 N.W.2d 718. While negligence actions are generally not suited for summary judgment, such a result is proper when the duty question is resolved in the defendant’s favor. Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993). The existence of such a duty is a question of law subject to de novo review. Id. The concept of duty was recently discussed in Braun v. New Hope Tp., 2002 SD 67, ¶ 9, 646 N.W.2d 737, 740:

For the law to impose a duty, a sufficient relationship must exist between the parties. Foreseeability may also create a duty. Although foreseeability is a question of fact in some contexts, foreseeability in defining the boundaries of a duty is always a question of law. Foreseeability in the ‘duty’ sense is different from foreseeability in fact issues bearing on negligence (breach of duty) and causation, (internal quotations and citations omitted).

[¶ 11.] A duty can be created by statute or common law. Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, ¶ 11, 545 N.W.2d 823, 826. Although Kuehl alleges several violations of state law, the violations do not create a duty on the part of Horner.

[¶ 12.] To determine whether a common law duty has been created it is necessary to consider Restatement (Second) of Torts 324A (1965):

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
a) his failure to exercise reasonable care increases the risk of such harm, or
b) he has undertaken to perform a duty owed by the other to the third person, or
c) the harm is suffered because of rebanee of the other or the third person upon the undertaking.

[¶ 13.] Some of Kuehl’s evidence that was presented in opposition to Hor-ner’s motion for summary judgment must be rejected. Kuehl submitted the affidavit of a private investigator who had no firsthand knowledge of the accident or the preceding events. Kuehl relies on the reports of six interviews conducted by the investigator and attached to his affidavit. Evidence submitted in affidavits as part of a summary judgment proceeding must be made on personal knowledge and be legally admissible. SDCL 15 — 6—56(e). Parties cannot rely on recitations of hearsay in affidavit form without also laying a foundation for an exception to the hearsay rule. Chem-Age Industries, Inc., v. Glover, 2002 SD 122, 652 N.W.2d 756. The interview reports attached to the investigator’s affidavit are hearsay and cannot be considered.

[¶ 14.] Kuehl also submitted the affidavit of Lewis Dirks, a qualified accident reconstructionist. Dirks’ affidavit complies with SDCL 15 — 6—56(e). Dirks had been hired by an insurance company to investigate the accident and report his findings. He reviewed photographs of the accident scene and observed that the trailer was carrying lumber that had been banded with metal bands. He concluded that because the lumber was banded,, it was not stacked to the front of the trailer but loaded further to the rear.

[¶ 15.] Dirks also concluded that the banded bundles of lumber were of sufficient weight that two men could not lift them and place them onto the trailer. This conclusion is supported by a cursory view of the photographs in the record. Dirks found that there were at least two banded bundles of lumber on the trailer. He estimated that each weighed between four hundred to six hundred pounds. He further concluded that these bundles were “too large, heavy and awkward” to load without the assistance of a forklift or a loader and that the design of the trailer would not prevent a forklift from being used. He determined that the accident was caused by the excessive weight and improper placement of the load on the trailer.

[¶ 16.] For summary judgment purposes we must view the facts in a light favorable to Kuehl and give her the benefit of all reasonable inferences. Dakota Pork Indus., supra. Dirks’ affidavit creates material issues of fact as to Horner’s assistance in loading the trailer for travel on a public highway and Horner’s failure to use reasonable care thereby increasing a foreseeable risk of harm to the public. Restatement (Second) of Torts 324A(a) (1965). Thus, we hold that the existence of genuine issues of material fact preclude summary judgment in this case.

[¶ 17.] We have considered Kuehl’s other assignments of error and find them to be without merit.

[¶ 18.] Reversed and remanded.

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

[¶ 20.] MEIERHENRY, Justice, dissents.

[¶ 21.] BASTIAN, Circuit Judge, for SABERS, Justice, disqualified.

MEIERHENRY, Justice

(dissenting).

[¶ 22.] I respectfully dissent.

[¶ 23.] Kuehl filed suit against Horner for allowing Warne to leave the lumber yard with the dangerous load and for negligently loading the trailer and banding the lumber. It should be noted that the trial court granted summary judgment based upon Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (1974) and Restatement (Second) of Torts §§ 314-320. The trial court determined that a party owes no duty to a third party absent a special relationship such as parent-child, master-servant, landlord-occupier and dangerous persons in one’s control. The court concluded that “as Horner Lumber did not have a special relationship to protect Kuehl from either Lance Warne or Kevin Schoenfelder, summary judgment is appropriate on the issue of duty.” It is important to note that plaintiff did not argue to the trial court nor to this Court the applicability of Restatement (Second) of Torts 324A (1965). Thus the trial court did not have the opportunity to determine whether a duty existed under § 324A. Neither did the defendant have an opportunity to address the applicability of § 324A. The majority makes this determination sue sponte. I assume the majority did not find error with the trial court’s determination that no duty existed under Restatement (Second) of Torts §§ 314-320.

[¶ 24.] Section 324A of the Restatement (Second) of Torts is often referred to as the “Good Samaritan Doctrine.” Appley Bros. v. U.S., 164 F.3d 1164, 1173 (8thCir.1999); Appley Bros. v. U.S., 924 F.Supp. 944, 962 (D.S.D.1996). Section 324A outlines the conditions under which a gratuitous actor acquires liability for injury to a third person:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Id.

[¶ 25.] In order for a duty to arise from a gratuitous service, there must be a sufficient undertaking. We stated in Schultz v. Mills Mut. Ins. Group, that merely bestowing a benefit on another does not give rise to a duty. 474 N.W.2d 522, 526, (S.D. 1991). In Schultz, we affirmed the trial court’s finding “that there was no evidence in the record that Mills Mutual ever either expressly or impliedly undertook fire inspection safety services for or on behalf of Farmers Cooperative.” Id. at 524. The company inspected the elevator and gave a copy of its report to Farmers Cooperative. The company inspection was not for the benefit of the elevator or third parties but for its own use. This is similar to Schoenwald v. Farmers Co-op Ass’n of Marion, where we affirmed a trial court’s determination that an insurance company that performed an inspection of its insured had no duty under § 324A to perform the inspection non-negligently. 474 N.W.2d 519, 521-22. In that case, there was an explosion three months after Mills Mutual inspected a grain elevator. There was no question that “the purpose of Mills Mutual’s inspections were [sic] for Mills Mutual’s underwriting and rate-setting.” Id. at 520. As in Schultz, the inspection was for the company’s own use, not the use of others. We reasoned:

Merely because Farmers Cooperative would receive a benefit from Mills Mutual’s inspections by way of comment of observations on safety problems does not establish the intent or action to perform a duty of providing a safe working environment on behalf of Farmers Cooperative. The presentation of that information is purely collateral to the purposes of the inspections. Mills Mutual created no anticipation or expectation on behalf of Farmers Cooperative that their inspections were done for the purposes of providing a safe environment. Indeed, were this court to hold that the relaying of information concerning safety of the premises would create liability on the part of the insurance company, such a decision might well cause an insurance company to choose to not relay that information for fear that by doing so it would create a duty upon itself which it would not otherwise have had. Our purpose should be to encourage the distribution of information concerning possible jeopardy, not to discourage it by creating a previously nonexisting duty.

Id. at 522. We further stated that “Restatement (Second) 324A deals with the rendering of services to another. For there to be a duty, those services must fall within the definition of sub-paragraphs a, b, or c.” Id. at 521.

[¶ 26.] In Hoekman v. Nelson, we also affirmed a summary judgment on the basis that the driver of a vehicle who stopped in his lane did not owe a duty to a pedestrian who the driver had waived across the lane of traffic and who was hit by a vehicle in the adjoining lane. 2000 SD 99, 614 N.W.2d 821. We stated: “Under the facts and circumstances in this case, [the driver who waived pedestrian across his lane] did not owe a duty of care to ensure [pedestrian’s] safety across the entire street.” Id. ¶ 18.

[¶ 27.] In order to find that Horner had a duty to Kuehl under § 324A, there must be a gratuitous undertaking; that is, the services rendered to Warne and Schoen-felder should be recognized as necessary for the protection of a third person, i.e. Kuehl. The duty arises if (1) the “failure to exercise reasonable care increase[d] the risk of harm,” or (2) Horner’s employees undertook the performance of the duty that Warne and Schoenfelder owed to Kuehl or (3) Warne, Schoenfelder or Kuehl relied upon the undertaking. Restatement (Second) of Torts § 324A. The majority does not indicate how the evidence supports the existence of a duty under the requirements of the Restatement section.

[¶ 28.] An analysis of the facts taken in the light most favorable to Kuehl does not show that Horner has a duty to Kuehl. Kuehl alleges that Horner negligently loaded the trailer. Warne and Schoenfelder testified that no Horner employees used a forklift to load the trailer involved in the accident. The only evidence as to whether Horner’s employees may have helped load the trailer came from the opinion of Lewis Dirks, an accident reconstructionist hired by State Farm Insurancé Company. Dirks’ investigation consisted of looking at pictures of the pickup and trailer in the ditch taken after the accident by the Minnehaha County Sheriffs office. By looking at the pictures, he opined that a forklift must have been used. He states in his affidavit:

c. The photographs show banded bundles of lumber that were of sufficient weight that two men could not lift them and place them onto the trailer.
i. That a close examination of the photographs of the loaded trailer clearly show at least two banded bundles of lumber near the top of the load. One is on the left and one is on the right. My analysis and calculations indicate that each of said bundles very conservatively weighed between a minimum of 408 pounds and 612, with both of said weights in the range being conservatively calculated.
j. That said bundles are too large, heavy and awkward for two men to normally load them by hand, especially that high on the trailer load, without the assistance of a loader or forklift. It can therefore reasonably be assumed that the forklift at Horner was used in the loading of at least these two bundles. The design of the trailer would in no way interfere with the use of the forklift to load said bundles. Because the fork [sic] on the lift do tilt, there is no reason why the design of the trailer would interfere with loading any of the lumber, especially the bundles of lumber.

[¶29.] The testimony of Schoenfelder and Warne was that they loaded the lumber all by hand without any help or supervision from Horner or its employees. Schoenfelder’s testimony was as follows:

Q. Who decided what wood was going to go on which trailer?
A. I did, I think, if I recall right.
Q. And did you just decide it based on what looks like it’s going to fit where?
A. Yes.
Q. Do you believe it was the lumber company’s responsibility to tell you what wood to put on which trailer?
A. No. They weren’t supervising any of this.
Q. Even though some of it was banded, you and Mr. Warne could still carry it, the two of you?
A. Yes. Some of that was just real small. They were two 2x6s wide and five high and they were all crooked and that’s why they banded it. It wouldn’t even stack, it was such crooked lumber.
Q. So there was a forklift used that morning but not for loading in this trailer?
A. Correct. This one with the sides like we talked, had to load it all by hand and it was a pain.
Q. Do you know about how long it would have taken to load this trailer?
A. Twenty minutes.

Warne’s testimony also supports Schoen-felder’s recollection of events that the two of them loaded all of the lumber. Warne did not recall a forklift being used at any time to load lumber that day.

[¶ 30.] Even considering Dirks’s opinion as true, the most that Horner’s employees did was to load two large bundles of wood onto the trailer near the top of the load. The only other admissible evidence is from Warne and Schoenfelder who said they loaded all the wood by hand. Therefore, the determination is whether the loading of those two bundles of wood created a duty under § 324A. The question is whether Horner’s services to Warne and Schoenfelder, i.e. loading the two bundles of wood onto the trailer, gave rise to a duty to a third party. In order for a duty to be created to a third person under § 324A, one of the following must be present: “(a) [Horner’s] failure to exercise reasonable care increase[d] the risk of such harm, or (b) [Horner] ha[d] undertaken to perform a duty owed by [Warne and Scho-enfelder] to [Kuehl], or (c) the harm [was] suffered because of reliance of [Warne and Schoenfelder] or [Kuehl] upon the undertaking.” Id. Here, Horner did not undertake the duty to load all the lumber on the trailer or to provide an inspection as to whether the load was balanced and of the proper weight or whether the loaded trailer could safely haul the lumber on a public highway.

[¶ 31.] Even the opinion of Dirks does not conclude that the manner of loading these two bundles increased the risk as required by § 324A (a). Nor does the evidence support that Horner undertook to perform a duty which Warne or Schoen-felder owed to Kuehl. Warne and Schoen-felder had a duty to load and transport the wood in a manner that it could be safely driven on a public highway. There is no indication that Horner or its employees undertook that duty. Even assuming the two bundles were loaded with Horner’s forklift, Horner did not assume any responsibility to arrange the wood, inspect the trailer or in any other way take on the duty to load and transport the wood in a safe manner. Consequently, subsection (b) has also not been met. Clearly the evidence does not support a finding under subsection (c). Kuehl presented no evidence that either Warne or Schoenfelder relied upon Horner to supervise the loading of the trailer or to load the trailer in its entirety. In fact, Schoenfelder claims he supervised the loading and decided how the wood should be placed. Both men testified that they were the ones who secured the wood onto the trailer. Neither expected Horner to supervise or be responsible. Therefore, the duty does not arise under § 324(c).

[¶ 32.] I would affirm the trial court’s determination that Horner had no duty. I would do so under either Restatement (Second) of Torts §§ 314-320 or § 324A.

      . Except where noted, these facts represent the facts that were agreed upon by the parties. They are derived from Horner’s statement of undisputed material facts and Kuehl's statement of genuine issues of material fact remaining for trial that were presented to the trial court.

      . Kuehl argues that violations of SDCL 32-15-27, 32-18-3 and 32-22-8.1 have created a statutory duty. All of these statutes pertain to the operator of a vehicle that is towing a trailer or to the owner of a trailer. None of these statutes pertain to Homer.

      . I agree with the majority that the affidavit of the private investigator is inadmissible.

      . Dirks’s affidavit specifies what he believed caused the accident:
      b. The photographs also show that at the time of the accident some of the lumber was banded with metal. Because the lumber was banded, it was not stacked to the front of the trailer but loaded further to the rear of the trailer.
      d. Because of the way the lumber was placed on the trailer, the center of mass of the lumber was moved further away from the front of the trailer. The reduction of the weight on the rear axle of the pickup caused the weight to start to sway from side to side.
      e. This accident occurred because of the improper loading of the tandem axle trailer. Because the lumber was loaded to [sic] far to the rear of the trailer, the hitch on the pickup, either didn't have sufficient weight on it or the trailer was actually lifting the back of the pickup. When the unit went over a rough spot on the road the lumber began to bounce. This up and down action of the cargo caused the rear end of the pickup to lose traction and the trailer and pickup started to sway causing the pickup and trailer to go out of control,
      f.The accident could have been avoided if the trailer would have been loaded properly with no more weight than the trailer could handle and the weight of the cargo properly located on the trailer.
      k. That the trailer is a homemade trailer, designed with the axles significantly forward of the center point so that the loaded trailer normally has an aft center of gravity, especially when the trailer is loaded as it was at the time of the accident. A result of this aft center of gravity reduces the tongue weight or conceivably causes a negative weight on the tongue, thereby creating a dangerous condition on the highway.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2004 SD 47
    HILL CITY EDUCATION ASSOCIATION, Petitioner and Appellee, v. HILL CITY SCHOOL DISTRICT 51-2 and Board of Education, Respondents and Appellants.
    No. 22945.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided April 7, 2004.

      Anne Crowson Plooster, South Dakota Education Association, Pierre, South Dakota, Attorney for petitioner and appellee.
    Donald P. Knudsen of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorneys for respondents and appellants.
   KONENKAMP, Justice.

[¶ 1.] Under the Hill City School District’s collective bargaining agreement with the Hill City Education Association, health benefits were to be provided to the District’s employees. At the end of the school term in June, the District terminated health benefits for those employees who would not be returning the next year. The Association contested the decision, and the dispute went to the Department of Labor. In denying the Association’s grievance, the Department found that the negotiated agreement was ambiguous on when benefits were to end and ruled that the District’s past practices controlled. The circuit court reversed, holding that the agreement was not ambiguous and that non-returning employees were enti-tied .to receive health benefits until the negotiated agreement expired in August. We affirm because the negotiated agreement unequivocally provided that all employee contracts would commence on August 15, 2000 and end on August 15, 2001.

Background

[¶ 2.] On July 11, 2000, the Hill City School District and the Hill City Education Association entered into a negotiated agreement. Article IX, Section 9.4 stated that the “provisions of the Agreement shall be effective as of the 15th day of August 2000, and shall continue and remain in full force and effect as binding on the parties until the 15th day of August 2001.” In the spring of 2001, the District notified staff members who would not be returning for the following school year that their health insurance “terminates June 30, 2001.”

[¶ 3.] When the parties were unable to reach a satisfactory resolution, the Association petitioned the South Dakota Department of Labor. The petition alleged that the District violated, misinterpreted, or inequitably applied the negotiated agreement when it terminated health benefits in June for “certified staff members” who would “not be returning” for the next school year. The Association claimed that under the terms of the agreement, the District was required to provide health and dental insurance until August 15, 2001. The Department concluded that the District had not violated the negotiated agreement because it was ambiguous on when benefits were to end for “teachers not returning for the next year”; consequently, the District’s past practice of terminating benefits at the end of the school term was controlling.

[¶ 4.] On appeal, the circuit court reversed the Department’s decision. In a memorandum opinion, the court scrutinized each part of the negotiated agreement claimed by one side or the other to be controlling and then concluded that, as a whole, the agreement was not ambiguous on the duration of benefits. The court ruled that teachers who had fulfilled their obligations under their individual contracts remained entitled to benefits until August 15. Furthermore, the court held that because the negotiated agreement was unambiguous, the District’s past practices could not modify the agreement. In this appeal, the District questions “whether [it] violated, misinterpreted or inequitably applied the negotiated agreement when it cancelled fringe benefits at the end of the school year rather than at the end of the term of the negotiated agreement for certified staff members who resigned, retired or whose contracts were not renewed.”

Analysis and Decision

[¶ 5.] Our standard of review for agency decisions is governed by SDCL 1-26-36. Great weight is given to an agency’s findings on factual questions and inferences drawn from them. SDCL 1-26-36; Moonlight Rose Co. v. South Dakota Unemployment Ins. Div., 2003 SD 96, ¶ 5, 668 N.W.2d 304, 307 (citation omitted). With questions of law, however, our review is de novo. Id. Contract interpretation presents a question of law. Auto Owners Ins. Co. v. Enterprise Rent-A-Car Co.Midwest, 2003 SD 52, ¶ 7, 663 N.W.2d 208, 209-10.

[¶ 6.] When disputes arise over a contract, they are resolved with reference to contract law. Wessington Springs Educ. Ass’n v. Wessington Springs School Dist. 36-2, 467 N.W.2d 101, 104 (S.D.1991). Both sides here agree that the negotiated agreement is not ambiguous. “[A] contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire agreement.” Estate of Fisher v. Fisher, 2002 SD 62, ¶ 12, 645 N.W.2d 841, 845 (citation omitted).

[¶ 7.] The District’s argument rests on the proposition that teachers whose contracts are not renewed for the following school term are no longer considered “employees” under the negotiated agreement when they complete the school term. Thus, in the District’s reasoning, non-returning teachers who complete all their contractual obligations are not enti-tied to benefits up to the expiration of the negotiated agreement. On the other hand, returning teachers who complete all their obligations are entitled to benefits until the expiration of the negotiated agreement.

[¶ 8.] The District supports its position by characterizing individual teacher contracts as in force only during the “school term.” Non-returning teachers, the District argues, “earned the salary stated in the individual teacher contracts between September 5, 2000 and May 24, 2001,” and therefore, when their contracts are fully performed, their employment ends. This is a misreading. Those individual contracts simply obligate employees to perform their duties during the school term, as set out in the school calendar. Under the provisions of the negotiated agreement, however, the teachers also earn a full year of health and dental benefits by performing their contractual obligations between September 5, 2000 and May 24, 2001.

[¶ 9.] The plain effect of the contractual language contemplates that benefits arising under the agreement end on the “15th day of August,” not at the end of the school term. And because the individual contracts do not provide a terminal date, the District’s reference to SDCL 13-43-6.3 is of no avail. That statute provides that a contract of a teacher who fails to accept an offer of renewal “shall result in the termination of the existing contract between the teacher and the district at the end of its term.” Here, the end of the term for each contract was August 15. The negotiated agreement effectively provided that all its provisions were incorporated in each teacher’s contract because Article IX, section 9.2 of the negotiated agreement states, “[t]he terms and conditions of this Agreement shall be reflected in individual teacher contracts.”

[¶ 10.] The District also argues that a notification of nonrenewal terminates a teacher’s contract. But nonrenewal means only that a teacher’s contract will not be renewed with another contract. Simply because a teacher or the District decides that no new contract will be made for the next year does not necessitate the conclusion that the current contract' 'must end earlier than its agreed upon ending date. Nor does a teacher’s notification of nonre-newal equate to consent to terminate a contract. The District argues that the individual contracts of teachers whose contracts are not renewed are terminated at the end of the school term by mutual consent. Nothing in the contractual documents suggests that notification of nonre-newal equates with consent to terminate a present and valid contract.

[¶ 11.] Finally, the District contends that “[t]he only way the liquidated damages provision in the individual teacher contracts makes sense is if the contract expires at the end of the school term.” Liquidated damages are set out in the individual teacher contracts as follows:

If the teacher initiates the termination of this contract prior to its terminal date, the school district may withhold from any monies due the teacher or collect from the teacher the sum of one hundred dollars ($100.00) as liquidated damages if such termination occurs on or before May 31; two hundred fifty dollars ($250.00) if between June 1 and June 30; five hundred dollars ($500.00) if between July 1 and July 31; seven hundred fifty dollars ($750.00) if after August 1 and prior to the start of school; and one thousand five hundred dollars ($1500.00) if the teacher initiates the termination of this contract after school has convened.

From this provision, the District argues, “if a teacher taught the entire 2000-2001 school term, but then resigned or retired, he/she could be charged with liquidated damages.” This would be an absurd result, the District contends, because, if the contractual obligations lasted until August 15, liquidated damages would apply to teachers who had fulfilled their contractual duties and then retired or resigned at the end of the school term.

[¶ 12.] Although there is some cogency to this argument, we can only conclude from the combined language of the negotiated agreement and the individual teacher contracts that the duration of the school term and the duration of the negotiated agreement were not intended to be coterminous. That seems clear in the language of the negotiated agreement — the effective the master agreement — which provides for the contract to end on August 15. Moreover, the- liquidated damages provision awards damages to the District in the event a teacher “initiates the termination of [the] contract.” We cannot view as reasonable an interpretation that requires us to redefine the phrase “initiates the termination” as “will not be renewed at the end of the school term.”

[¶ 13.] In summary, the negotiated agreement extends health and dental benefits to “employees.” Non-returning employees maintain their status as employees until the expiration of the negotiated agreement. There is no basis to interpret this agreement otherwise. Thus, non-returning teachers who fulfilled their contractual obligations are entitled to health and dental benefits for the entire term of the negotiated agreement ending on August 15, 2001.

[¶ 14.] Affirmed.

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

      .Article V of the negotiated agreement provides:
      5.1 HEALTH BENEFITS — The school district shall pay 80% of a family or 80% of a single health insurance plan premium as of September 1 each school year. The health plan must be the school insurance plan. This benefit is for full time equivalency employees only. Employees who are less than full time (and otherwise qualify for this benefit) will have this benefit prorated based on their percentage of full time equivalency.
      5.2 DENTAL INSURANCE — The school district shall pay 100% of the dental insurance premium (single premium) for each employee. The dental plan must be the school insurance plan.

      . The District does not argue now that its past practice modifies the agreement. Rather, it argues only that "[i]f the contract is silent or ambiguous, the parties’ past practices establish that the parties did not intend for the School District to provide fringe benefits to non-employees during the summer months[.]” Because we do not interpret the agreement as ambiguous, we need not address this argument.

      . Although the record is not clear on what precise circumstances caused these employees to not return, the ALJ classified them as "certified staff members who resigned, retired or whose contracts were not renewed.” We do not interpret this to include those employees who were terminated for cause or those who retired or voluntarily quit before the end of the school term.

      . Each individual teacher contract provided that the 2000-2001 school term would begin "on or about September 5, 2000." Each contract also provided that "this contract shall be subject to the official school calendar adopted by the school board.” The official school calendar provided that the school term would end on May 24, 2001.


author: ZINTER, Justice.

text:
    2004 SD 46
    In the Matter of the ESTATE OF Henry SIEBRASSE, Deceased.
    Nos. 22964, 22978.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 17, 2004.
    Decided April 7, 2004.

      Jeff G. Hurd, John H. Raforth of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for appellant, Estate & Donald Siebrasse.
    Kennith L. Gosch, Melissa E. Neville of Bantz, Gosch, Cremer, Peterson & Som-mers, Aberdeen, South Dakota, Attorneys for appellee, Delbert Siebrasse.
   ZINTER, Justice.

[¶ 1.] This appeal involves an ongoing probate dispute. Delbert and Donald Sie-brasse are devisees of their father’s estate. As a result of Delbert’s successful efforts to reduce the taxable value of his inheritance, the total value of the taxable estate was reduced. As a result of that reduction, the Estate received a federal estate tax refund. Over Estate’s objection, the circuit court ordered that the entire refund be given to Delbert, rather than apportioning the new tax liability among all persons in proportion to their respective interests. In deciding this refund issue, the circuit court also valued Delbert’s inherited land and denied Delbert’s request for attorney’s fees. Both brothers appeal, and we: (1) reverse the order requiring an immediate distribution of the entire tax refund to Delbert, (2) remand for an apportionment of the ultimate estate tax liability, (3) reverse the trial court’s finding on the valuation of Delbert’s land, (4) remand for a reconsideration of Delbert’s attorney fee request, and (5) affirm all other issues.

Facts and Procedural History

[¶ 2.] Henry Siebrasse died on May 1, 1999. Henry was survived by his daughter, Leola Siebrasse Hall, and two sons, Donald and Delbert. Henry’s will was admitted to probate, and his son Donald was appointed personal representative. Donald, as personal representative, reported the value of Delbert’s inherited land at $328,600 for tax purposes. However, Delbert argued that the value should be reduced by $183,600 to $145,000. The federal estate tax was calculated on the value of the total estate, which included the personal representative’s $328,600 land value. The tax was apportioned among all those interested in the estate, and Delbert paid $92,710 as his pro rata share.

[¶ 3.] This land valuation disagreement became the subject of two previous appeals before this Court. In the first, we held that Delbert was denied due process when he was denied a hearing on valuation. In re Estate of Siebrasse, 2002 SD 26, 640 N.W.2d 747 (Siebrasse I). We remanded the case “for a hearing on the valuation of the land Delbert inherited and for additional appropriate proceedings if the value is changed.” Id. ¶ 13. On rehearing of that appeal, we next held that because the will did not include a tax clause, the federal estate taxes were to be apportioned among all of the devisees of the Estate under SDCL 29A-3-916(b). In re Estate of Siebrasse, 2002 SD 118, 652 N.W.2d 384 (Siebrasse II).

[¶ 4.] Following Siebrasse II, Delbert petitioned the circuit court for a hearing to determine the value of the real property he inherited. Delbert sought to reduce the value of the land and resulting estate and inheritance taxes. A hearing on this question became necessary because Donald, acting as personal representative, declined to support Delbert’s revaluation/refund claim. Later, however, Donald relented to the point of giving Delbert a power of attorney that permitted Delbert to pursue the refund on his own. Consequently, the circuit court valuation hearing was continued indefinitely.

[¶ 5.] Delbert then filed his revaluation claim with the IRS. Delbert argued that the IRS had not previously been given sufficient information about the nature of the land to properly value it. He asserted that his inherited land had been over-valued by $183,600. He claimed that his lower valuation would reduce the value of the total estate and the corresponding federal estate tax liability.

[¶ 6.] The IRS subsequently accepted Delbert’s claim, reduced the tax on the entire estate, and refunded $90,580.18 to the Estate ($75,525 in estate tax and $18,055.18 in interest). This dispute then developed over the right to the refund. The Estate argued that the refund was still being examined by the IRS, and therefore, it should not have been distributed until the federal estate tax was finally determined. Estate also argued that if the refund was to be distributed, it should be allocated among all those interested in the estate in accordance with their ultimate federal estate tax liability under the apportionment statute. Delbert, however, claimed that because the entire refund arose from his efforts, “equity demanded” that the entire refund belonged to him. Delbert sought an immediate distribution along with his attorney’s fees and prejudgment interest.

[¶7.] The circuit court concluded that because the refund arose from Delbert’s sole efforts to revalue his inherited land, equity required that the Estate should pay the entire refund to Delbert. The circuit court specifically declined to apportion the refund as a part of the new estate, tax liability. The circuit court also ruled that Delbert was not entitled to his attorney’s fees because he expressly waived them if he received the entire refund. The circuit court finally adopted a finding that the value of Delbert’s inheritance was $145,000. Each of these rulings is now challenged.

[¶ 8.] Estate appeals raising the following issues:

1. Whether the circuit court denied the Estate due process when it valued Delbert’s inherited land after the hearing on the motion to distribute the estate tax refund.
2. Whether the circuit court erred in ordering the distribution of the federal estate tax refund before the taxes were finally determined.
3. Whether the estate tax liability remaining after the refund arising from the revaluation of Delbert’s land should have been apportioned among all those liable for the tax.

By Notice of Review, Delbert raises the following issues:

4. Whether Delbert is entitled to attorney’s fees in pursuing the federal estate tax refund.
5. Whether Delbert is entitled to prejudgment interest on the federal estate tax refund withheld from distribution by the Estate’s personal representative.

Analysis and Decision

[¶ 9.] 1. Whether the circuit court denied the Estate due process when it valued Delbert’s inherited land after the hearing on the motion to distribute the estate tax refund.

[¶ 10.] We previously heid that it was a violation of due process to value Delbert’s' inheritance without notice and opportunity to be heard. Siebrasse I, 2002 SD 26, ¶ 12, 640 N.W.2d at 750. We review due process questions de novo. Roth v. Famer-Bocken Co., 2003 SD 80, ¶ 44, 667 N.W.2d 651, 665.

[¶ 11.] The Estate points out that prior to Siebrasse I, the circuit court adopted Estate’s value of the inherited land without a hearing and this Court reversed. Estate argues that this time the circuit court “committed the same error in a different direction,” by adopting Delbert’s value without a hearing. Procedurally, we note that Delbert had noticed a hearing on valuation, and then abandoned it when the Estate granted him the power of attorney to seek the refund. Therefore, the circuit court did not conduct a specific valuation hearing. The valuation finding at issue was made as a part of the hearing on the refund dispute.

[¶ 12.] Considering this procedural history, we believe that the Estate was technically on notice that .the land valuation was a likely issue at the refund distribution hearing. It was on notice because a distribution on the Estate’s requested method using the apportionment statute would have required that the ultimate tax liability be apportioned pro rata according to the interest received. However, we also observe that under the apportionment statute, the value used to determine the tax is the value used to apportion the tax. SDCL 29A-3-916(b). Therefore, because there is no dispute that $145,000 was the value used to determine the tax, no separate valuation was required. Moreover, the trial court did not apportion the ultimate tax liability and refund under 29A-3-916(b). Instead, it gave the entire refund to Delbert. Under these circumstances, a valuation finding was unnecessary to the circuit court’s method of distributing the refund. Because a valuation finding was unnecessary, we reverse that finding and remand for a valuation hearing should it be necessary for any purpose in future proceedings.

[¶ 13.] 2. Whether the circuit court erred in ordering the distribution of the federal estate tax refund before the taxes were finally determined.

[¶ 14.] The circuit court concluded that the refund should be distributed immediately. Donald, however, argues that an immediate distribution exposed him to personal liability because, as personal representative of the estate, he was liable for any tax that was erroneously refunded. “We review a trial court’s conclusions of law under the de novo standardly.]” Burkhart v. Lillehaug, 2003 SD 62, ¶ 9, 664 N.W.2d 41, 42 (citing Osloond v. Osloond, 2000 SD 46, ¶ 6, 609 N.W.2d 118, 121).

[¶ 15.] We first note that if refunds are later determined to be erroneous, the IRS may recover them. 26 USC 7405 provides:

(a) Refunds after limitation period.— Any portion of a tax imposed by this title, refund of which is erroneously made, -within the meaning of section 6514, may be recovered by civil action brought in the name of the United States.
(b) Refunds otherwise erroneous.- — Any portion of a tax imposed by this title which has been erroneously refunded (if such refund would not be considered as erroneous under section 6514) may be recovered by civil action brought in the name of the United States.

We also note that this record reflects Donald was contacted by the IRS and advised that the government intended to reexamine the refund. In fact, Donald showed Delbert a letter from the IRS stating that the IRS would be comparing differing appraisals in its reexamination of the refund. Therefore, Donald, as personal representative, had actual knowledge that the tax liability remained unsettled. Moreover, as we noted in Siebrasse I and II, “SDCL 55-13-5 charges the principal of an estate with all settlement expenses, including federal estate taxes. Further, an estate cannot be closed until the federal estate taxes are paid. See SDCL 29A-3-1003(a)(2).” Siebrasse II, 2002 SD 118, ¶ 21, 652 N.W.2d at 388.

[¶ 16.] Under these circumstances, we conclude that Donald had the discretion to withhold distribution of the refund until the IRS completed its reexamination. He was given that discretion by SDCL 29A-3-916(d)(1), which provides in part:

The personal representative or other person in possession of the property of the decedent required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to the person, the amount of tax attributable to the person’s interest.

(Emphasis added.) Considering the fact that distribution of the refund was being reexamined and a change could expose the personal representative to personal liability, Donald had discretion under this statute to withhold distribution of the refund until the federal estate tax obligation was finally determined. We therefore reverse the order requiring an immediate distribution of the refund.

[¶ 17.] 3. Whether the estate tax liability remaining after the refund arising from the revaluation of Delbert’s land should have been apportioned among all those liable for the tax.

[¶ 18.] Questions involving the application of tax law are questions of law. Butler Machinery Co. v. SD Dept. of Revenue, 2002 SD 134, ¶ 6, 653 N.W.2d 757, 759. “Questions of law are reviewed de novo.” Rindal v. Sohler, 2003 SD 24, ¶ 6, 658 N.W.2d 769, 771 (citation omitted).

[¶ 19.] “Federal estate taxes are a tax on the right to transfer property from the estate of the decedent to the beneficiaries. The federal estate taxes are imposed on the gross estate minus expenses of administration, credit for state inheritance taxes and the unified credit.”. Siebrasse II, 2002 SD 118, ¶ 22, 652 N.W.2d at 388 (emphasis added). With respect to liability for those taxes, “South Dakota adopted the Uniform Probate Code, including SDCL 29A-3-916(b), which continues to provide for equitable apportionment of federal estate taxes so that each specific share, interest or legacy bears its proportionate part of the federal estate taxes.” Id. ¶ 11. The circuit court however, declined to apply this statute noting that Delbert’s efforts led to the refund, and therefore, it was “equitable” to distribute the entire refund to him. The circuit court stated “[e]quity demands that the personal representative not be allowed to benefit and that the full refund be paid to Delbert.” ,

[¶ 20.] On appeal, Estate argues that the circuit court erred in failing to apportion the ultimate federal estate tax, which included the refund, among all those liable for the tax. On the other hand, Delbert continues his argument that “[p]rinciples of equity require that Delbert receive the full refund.” However, Delbert cites no authority for this proposition. Furthermore, he fails to acknowledge the specific statute requiring that, absent a tax clause, federal estate tax liability must be apportioned pro rata.

[¶ 21.] Absent a tax clause in the will, SDCL 29A-3-916(b) clearly requires that the federal estate tax be apportioned “in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate.” It is noteworthy that this statute does not distinguish between initial liability and liability after refunds. It requires that the ultimate tax liability (whether payments or refunds) be apportioned. Consequently, we previously held in this very case that because the will did not include a tax clause, the federal estate taxes were to be apportioned among all of the devisees of the Estate. Siebrasse II, 2002 SD 118, ¶ 31, 652 N.W.2d at 390. We finally note that the reduction in value of Delbert’s land changed the value of the total estate. That reduction also changed the total amount of estate tax due and the pro rata percentage shares taken by each person interested in the estate. It may have also changed the applicable tax rate. Therefore, a reduction in Delbert’s inheritance will change the tax liability of all persons interested in the Estate. Consequently, under SDCL 27A-3-916(b), the Estate must retain the refund and then reapportion the ultimate tax liability of each person according to the interest they take.

[¶ 22.] Notwithstanding this specific statute and our previous holding, Delbert argues that “equity” demands that he receive" the entire refund because his efforts led to the refund. However, Delbert conceded at trial that this was “strictly an equitable argument,” and on appeal, he fails to cite to any authority authorizing this result. We also note that, “[a]n essential element to equitable relief is the lack of an adequate remedy at law.” Rindal, 2003 SD 24, ¶ 12, 658 N.W.2d at 772 (citations omitted).- Here we have a specific legal direction from statute, and “[u]se of equitable principles to trump an apposite statute ... is legally indefensible.” Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604, 608 (N.C.1997). We therefore conclude that Delbert cannot rely on “equity” when a controlling statute clearly requires apportionment.

[¶ 23.] We finally note that a comparison of a complementary statute confirms the applicability of the SDCL 29A-3 — 916(b) apportionment requirement. A comparison of §§ 916(b) and (c) reveals that taxes must be apportioned pro rata and that true “equitable” apportionment is only available for “interest and penalties.” Unlike SDCL 29A-3-916(b), only SDCL 29A-3-916(c)(2) allows true equitable apportionment, and it only permits such treatment for interest and penalties. It provides: “If. the court finds that it is inequitable to apportion interest and penalties in the manner provided in subdivision (b), because of special circumstances, it may direct apportionment thereof in the manner it finds equitable [.] ” (Emphasis added.) When read together, these statutes clearly reflect that under § 916(b), the tax must be apportioned pro rata, but under § 916(c), interest and penalties may be apportioned “equitably” to accommodate for special circumstances.

[¶ 24.] We hold that Siebrasse II and the express language of SDCL 29A-3-916(b) require that the ultimate tax liability must be a re-apportioned among all those interested in the estate after the revaluation and refund. SDCL 29A-3-916(b). Only interest could have been “equitably” distributed to Delbert for his individual efforts. SDCL 29A-3-916(c)(2). We therefore affirm the circuit court’s equitable apportionment of all interest to Delbert, and remand the ultimate tax liability determination after the refund for re-apportionment in accordance with SDCL 29A-3-916(b).

[¶ 25.] 4. Whether Delbert is entitled to attorney’s fees in pursuing the federal estate tax refund.

[¶ 26.] Delbert argues that because his sole efforts created the refund, the estate should be required to pay his attorney’s fees. He asserts that even if he were to receive the entire refund, he would be receiving that refund as a “beneficiary of the estate,” and therefore, it would be a benefit to the estate. Delbert relies on In re Hafferman, 442 N.W.2d 238 (S.D.1989). In that case, we applied a two-prong test for entitlement to attorney’s fees by persons other than the personal representative: (1) the services rendered must be beneficial to the estate; and (2) the services must be necessary because of the negligence, fraud or failure to defend an interest of the estate by the personal representative of the estate.

[¶ 27.] Here, however, the trial court specifically withdrew its initial finding that Donald’s negligence necessitated Delbert’s legal -fees. That leaves the rec+ ord with no finding to support an award of fees under prong (2) of Hafferman, We also fail to see how distribution of the entire refund to Delbert, to the exclusion of all others interested in the Estate,' benefits the Estate. Such a distribution is certainly of no benefit to all others interested in the Estate because they would have to pay more than their pro rata share of tax under Delbert’s proposed distribution. Because we see ho benefit to the Estate if the entire refund • had been awarded to Delbert, we see no error in the circuit court’s denial of Delbert’s request for attorney fees.

[¶ 28.] We also note that Delbert’s argument is not properly before this Court. SDCL 15-26A-22 provides that “[a]n appellee may obtain review of a judgment or order entered in the same action which may adversely affect him.... The notice of review shall specify the judgment or order to be reviewed.” Delbert has failed to specify the judgment or order from which he appeals. This is apparently because Delbert told the circuit court .that if the court awarded him the entire refund, he would .not be entitled to an award.of attorney’s fees. The circuit court agreed and awarded him the entire refund without fees. Therefore, his current argument that he is entitled to the entire refund plus attorney’s fees is not properly before this Court. ‘We will ordinarily decline to review issues not properly presented to the trial court.” Estate of Gaspar v. Vogt, Brown & Merry, 2003. SD 126, ¶ 15, 670 N.W.2d 918, 924 (citing Knudson v. Hess, 1996 SD 137, ¶ 8, 556 N.W.2d 73, 75).

[¶ 29.] However,- because we are . remanding to apportion the ultimate tax liability proportionally among those paying the tax, the Estate may benefit, and the trial court should reconsider this issue on remand. On reconsideration, the attorney fee request is governed by SDCL 29A-3-720, which provides in part:

The court may also award . necessary expenses and disbursements, including reasonable attorney’s fees, to any person who prosecuted or defended an action that resulted in a substantial benefit to the estate.

[¶ 30.] 5. Whether Delbert is entitled to prejudgment interest on the federal estate tax refund withheld from distribution by the Estate’s personal representative.

[¶ 31.] Delbert argues that he is entitled to prejudgment interest on the federal estate tax refund. He contends that he is entitled to interest from the time the personal representative received the check to the time the refund is distributed. Both parties rely on SDCL 21-1-11, which provides:

Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt.

(Emphasis added). However, this provision only applies to suits commenced before July 1,1990. SDCL 21-1-13.2.

[¶ 32.] The statute relied on by the parties was superseded by SDCL 21-1-13.1, which provides in relevant part: “Any person who is entitled to recover damages ... is entitled to recover interest thereon from the day that the loss or damage occurred [.] ” (Emphasis added.) In determining whether any loss or damage occurred, we first note that SDCL 29A-3-703(a) provides: “A personal representative is under a duty to settle and distribute the estate ... as expeditiously and efficiently as is consistent with the best interests of the estate.” (Emphasis added.) It must also be remembered that as we noted in Issue 2, SDCL 29A-3-916(d)(1) gives the personal representative discretion to withhold property until the tax is finally determined. Both statutes give the personal representative considerable discretion in such matters.

[¶ 33.] Considering this discretion, Delbert failed to establish that any “loss or damage” occurred. Although Delbert argues that he was entitled to the refund on the day Donald received it, SDCL 29A-3-703(a) only required that Donald distribute the refund “expeditiously and efficiently.” Moreover, the personal representative was entitled to delay some of the property distribution pending the final federal estate tax determination. Under these circumstances, Delbert failed to establish that Donald failed to act “expeditiously and efficiently” and that Delbert suffered any “loss or damage.” We affirm this issue.

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

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

      . A number of heirs and devisees in addition to Delbert and Donald paid the original federal estate tax. The original estate tax obligation was apportioned.

      . The valuation finding was not made in the circuit court's bench decision. It was included in its findings of fact and conclusions of law following the hearing.

      . SDCL 29A-3-916(b) provides:
      Except as provided in subsection (i) and, unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent's will directs a method of apportionment of tax different from the method described in this code, the method described in the will controls.
      (Emphasis added.)

      . Delbert also argues that the refund should have been invested for the benefit of the estate. However, we need not decide this issue because the question of prudent investing by the personal representative is not before us. Our question is whether the refund was required to be distributed.

      . The circuit court also found the following:
      2. During the course of the probate the personal representative refused to allow Delbert a valuation hearing or to participate in negotiations with the Internal Revenue Service on an audit of the Federal Estate Tax Return.
      32. The personal representative opposed Delbert at each step. The personal representative wanted no part of a claim for refund.
      Although these findings (denominated as conclusions of law) may support the award under the second prong of Hafferman, Delbert did not present that argument to the trial court. We therefore express no opinion on this issue.

      . At the. hearing before the trial court, the Estate agreed that Delbert was entitled to attorney fees if the estate tax refund was apportioned. Because we remand for re-apportionment of the tax, Delbert is now entitled to pursue his fee request.


author: LAVORATO, Chief Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Gene A. WICKEY, Respondent.
    No. 03-1935.
    Supreme Court of Iowa.
    April 7, 2004.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Gene A. Wickey, Sioux City, pro se.
   LAVORATO, Chief Justice.

This disciplinary proceeding arises out of Gene A. Wickey’s handling of one criminal and two civil matters. The Iowa Supreme Court Board of Professional Ethics and Conduct alleged Wickey committed numerous ethical violations in those matters. The Grievance Commission recommended that we suspend Wickey’s license to practice law with no possibility of reinstatement for three months. Upon our consideration of the matter, we find that Wickey violated a number of our disciplinary rules, warranting a suspension with no possibility of reinstatement for a period of six months from the filing of this opinion.

Wickey has not appealed under Iowa Court Rule 35.11 from the Commission’s recommendation. Nevertheless, we review the record de novo. Iowa Ct. R. 35.10(1). “We give respectful consideration to the Commission’s recommendations, but we ultimately decide what discipline is appropriate under the unique facts of each case.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Reese, 657 N.W.2d 457, 461 (Iowa 2003). “The Board must prove its allegations of lawyer misconduct by a convincing preponderance of the evidence.” Id.

In our de novo review, we may impose a lesser or greater sanction than the discipline the Commission recommended. Iowa Ct. R. 35.10(2).

I. Background Facts.

Wickey was admitted to practice law in Iowa in January 1978. Criminal law represents the largest part of his practice. As mentioned, these proceedings arose out of the handling of three matters.

A. Hernandez criminal case. Wickey represented Dionicio Hernandez, who had been charged with homicide by motor vehicle, a class B felony. In a trial information filed January 4, 1999, the State alleged that Hernandez caused the death of another person by operating a motor vehicle while under the influence of alcohol and/or while having a blood alcohol concentration of .10 or more.

Wickey requested a retainer of $10,000. Although Wickey testified at the disciplinary hearing that he did not receive a retainer, letters from Wickey to Hernandez, dated January 26, 1999 and February 8, 1999, requested payment of the rest or balance of the retainer fee as soon as possible.

Wickey further testified that he received his first retainer payment in the amount of $6,500 on or about February 9, 1999 and believed he deposited the money in his trust account. Wickey’s supplemental answers to interrogatories state he has “no recollection as to what deposit was made” and he did not recall the date of the deposit. However, Wickey’s trust account records for January and February 1999 show no deposit in the amount of $6,500.

Wickey also testified that his standard office practice is to maintain a trust account ledger card on every client; however, he was unable to find one for Hernandez. Wickey claimed that in any event he had already earned the $6,500 fee when he finally received that amount from Hernandez.

While the criminal proceedings were pending, Wickey moved for a reduction of bail. On April 26, 1999, the district court reduced the bail by $5,000. In its order reducing the bail, the court made it clear that the $5,000 was “to be used solely for depositions and experts.” Wickey agreed and said he understood that he would have to wait for payment of his fees.

The same day as the court’s order, Wickey wrote Hernandez stating that “it is my understanding that the Court will release the sum of $5,000 to be used for discovery expenses.... ” On April 28, 1999, two days after the court’s order, Wickey wrote Hernandez another letter and stated that he was “giving some consideration to possibly trying to locate an expert who can testify as to medical procedures, the drawing of blood.... ”

Before the Board filed this complaint, Wickey advised the Board that the $5,000 was applied to Hernandez’s legal account with Hernandez’s approval and consent. In his supplemental answers to interrogatories, Wickey stated:

The Respondent recalls that by the time those funds [the $5,000] were received, additional fees were owed to the Respondent by the client and that a joint decision was made not to retain any experts. The Respondent does not recall whether or not the check was put into his trust account; however, it was the Respondent’s policy to deposit all unearned fees into the trust account.

At the disciplinary hearing, Wickey testified that he received a $5,000 check from the clerk of court and that he believed he deposited it into his trust account.

Ray Cota, a former police officer and court interpreter, testified on Wickey’s behalf at the disciplinary hearing. Wickey had retained Cota as an investigator for the Hernandez case, and Cota was involved in the early stages of the investigation. Cota was present during meetings with Hernandez and visited the accident scene to determine the cause of the accident. Although Cota did not consider himself an expert on accident reconstruction, he concluded the accident was Hernandez’s fault. Cota did not testify at Hernandez’s trial.

Wickey hired no experts and took no depositions.

Following his conviction, Hernandez appealed, claiming among other things, that he received ineffective assistance of counsel when Wickey did not hire or use an expert. We transferred the case to the court of appeals, which preserved the issue for postconviction relief proceedings. State v. Hernandez, No. 99-1338, 2000 WL 1433613 (Iowa Ct.App. Sept.27, 2000).

In his postconviction relief action, Hernandez sought relief based on Wickey’s failure to use the $5,000 bail reduction money toward its ordered purposes of retaining an expert or conducting depositions. The district court sustained the State’s motion for summary judgment. The court concluded Hernandez was not prejudiced because a defense expert would not have changed the outcome of the trial.

At two different times — on November 17, 1999 and January 3, 2000 — Hernandez sent Wickey written requests for detailed billing statements. Both letters included the following subject-line: “Repeated inquiry for an itemized bill.” On January 20, 2000, Wickey responded that he was in the process of putting together such a statement. However, Wickey never sent the statement.

B. Johnson bankruptcy. Wickey received a $500 retainer from Mr. and Mrs. Larry Johnson to represent them in a bankruptcy case. On November 16, 2000, we suspended Wickey’s license to practice law for his failure to pay his Iowa income tax and file in a timely manner Iowa income tax returns for four years. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wickey, 619 N.W.2d 319, 320-21 (Iowa 2000). Wickey had not filed the Johnsons’ bankruptcy by the time of his suspension. Wickey testified that he prepared the bankruptcy schedules and Mr. Johnson picked up the schedules to get his wife’s signature but never returned them. Wickey further testified he did not file the bankruptcy because the Johnsons did not pay the bankruptcy filing fee and did not return the schedules.

Wickey also testified that he maintained a trust account ledger for the Johnsons but could not find it. Wickey had no records or deposit slip showing that the $500 retainer was deposited in the trust account. Moreover, Wickey had neither a client file for the Johnsons nor time records for work he allegedly performed for them. He testified that he never provided the Johnsons with an accounting.

The Board introduced copies of notifications that Wickey sent clients about his suspension in 2000. There was no notice addressed to the Johnsons. Although Wickey submitted a notice-to-client form that he claims he sent to the Johnsons, the notice does not have a client name, whereas the other notices did.

C. Madison property claims. In March 1999 Jolene Madison sought Wick-ey’s assistance concerning her claims against the City of Sioux City and a jeweler in Nebraska.

Wickey wrote preliminary letters to the city and the jeweler on behalf of Madison. In the letter to the Nebraska jeweler, Wickey stated he would prepare and file a lawsuit if the problem was not resolved. Wickey has never been licensed to practice in Nebraska.

Wickey sent copies of the two letters to Madison with a letter outlining his proposed representation of her. Wickey stated he was not interested in a contingency fee arrangement, quoted his rate as $125 per hour, and requested an advance of $625 ($500 as retainer and $125 for filing and process fees). Madison retained Wickey and paid him the requested $625.

In response to the Board’s request for documents, Wickey stated he did not have a trust account ledger for Madison. Notwithstanding this response, Wickey testified at the disciplinary hearing that he had prepared a trust account ledger for Madison but was unable to locate it.

Madison testified she never received from Wickey an accounting, a bill, or a refund of any part of the advance she paid him. Wickey admitted he never sent Madison a bill although he prepared a billing statement in response to the Board’s request for information prior to filing its formal complaint.

Madison also testified that Wickey never informed her of his suspension. Wickey claims he sent Madison a notice but produced no notice that included Madison’s name.

Wickey had resolved neither of Madison’s claims before his suspension in November 2000. On August 29, 2001, Madison wrote Wickey inquiring about the status of her cases. By this time, Madison had consulted another attorney who wanted a copy of the file. Wickey did not respond to the request in writing but believed he spoke with Madison by phone.

II. Proceedings.

On June 30, 2003, the Board filed a complaint against Wickey, which was later amended. The amended complaint alleged that Wickey committed various ethical violations in connection with the matters previously mentioned concerning Hernandez, the Johnsons, and Madison.

As to Hernandez, the Board alleged that Wickey violated DR 1-102(A)(1) (lawyer shall not violate a disciplinary rule), (4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), (5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice), and (6) (lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law); DR 2-106(A) (lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee); DR 7-106(A) (lawyer shall not disregard ruling of a tribunal made in the course of a proceeding); DR 9-102(A) (lawyer shall deposit advances in trust account), (B)(3) (lawyer shall maintain complete records of all funds of client coming into possession of lawyer and shall render appropriate accounts to the client regarding them); DR 9-103(A) (lawyer shall maintain on a. current basis books and records sufficient to demonstrate compliance with DR 9-102).

As to the Johnsons, the Board alleged that Wickey violated DR 1 — 102(A)(1), (5), and (6); DR 9 — 103(A); and Iowa Court Rule 35.21 (notification of clients of suspension).

As to Madison, the Board alleged that Wickey violated DR 1-102(A)(1), (5), and (6); DR 6-101(A)(3) (lawyer shall not neglect a client’s legal matter); DR 9-102(A), (B)(3); DR 9-103(A); and Iowa Court Rule 35.21.

III. Ethical Violations.

Following the disciplinary hearing, the Commission found that Wickey had not deposited the $6,500 he received from Hernandez in his trust account, but by the time Wickey received the retainer, he had earned the full amount. We agree and adopt the finding that Wickey did not deposit the $6,500 in his trust account. However, we disagree with the Commission’s finding that Wickey had earned the fee by the time he received the $6,500. Wickey’s own letters to the client in which he requested the rest or balance of the retainer fee convince us that he indeed had received a retainer that he had not earned and which he therefore should have deposited in his trust account.

We also agree with and adopt the Commission’s finding that Wickey did not deposit the $5,000 bail reduction money in his trust account and that, contrary to the court’s order, used the money to pay his fees rather than hire experts and take depositions as the order required.

Although the Commission made no finding regarding the allegation that Wickey failed to maintain records sufficient to show that he deposited the $6,500 and the $5,000 in his trust account, we find the Board established that violation by a convincing preponderance of the evidence.

Finally, we adopt the Commission’s finding that Wickey failed to render Hernandez an accounting.

We therefore are convinced the Board established all of its allegations of unethical conduct, save one, against Wickey concerning Hernandez. The one exception is the allegation that Wickey charged an excessive fee. The Board produced no evidence to establish that allegation.

As to the Johnsons, we agree with and adopt the Commission’s findings that Wickey failed to send them notice of his suspension. We also find Wickey failed to maintain books and records sufficient to demonstrate compliance with DR 9-102; consequently he violated DR 9-103(A). He also violated DR 1-102(A)(1), (5), and (6). Although the Commission concluded Wickey violated DR 9-102(A) (lawyer shall deposit advances in trust account) and (B)(3) (lawyer shall maintain complete records of all funds of client coming into possession of lawyer and shall render appropriate accounts to the client regarding them) with respect to the Johnsons, the Board’s complaint did not allege Wickey violated those provisions in his representation of the Johnsons. Accordingly, Wickey cannot be found to have violated them in this instance.

As to Madison, we agree with and adopt the Commission’s findings that Wickey never sent Madison a notice of his suspension, never deposited the $625 advance in his trust account, and never maintained records sufficient to show that he deposited the retainer in his trust account. The Commission made no finding regarding the Board’s allegation that Wickey failed to render Madison an accounting. We find the Board established that violation as well. The Commission made a finding that Wickey did not neglect Madison’s claims, a finding with which we disagree. Contrary to the Commission’s finding, we think the Board established the neglect allegation. For these reasons, we conclude the Board established all of its allegations of unethical conduct against Wickey concerning Madison.

IV. Discipline.

What discipline is appropriate in an attorney disciplinary proceeding depends on the particular facts and circumstances of each case. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 637 N.W.2d 183, 187 (Iowa 2001). What we have here is a smorgasbord of ethical violations — violation of a court order, failures to maintain adequate trust account records as well as failures to deposit retainers in a trust account, failures to account to clients, failures to give clients notice of suspension, and neglect of a client matter. Wickey has demonstrated a cavalier attitude toward our ethical rules, especially those concerning trust accounts. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gilliam, 560 N.W.2d 1, 4 (Iowa 1997) (expressing our concern about trust account violations). We are also convinced Wickey was less than truthful with the Commission.

A review of our previous cases involving similar violations demonstrates that the three-month suspension the Commission recommended is not sufficient to deter Wickey from future violations. See Sherman, 637 N.W.2d at 187 (holding that deterrence is one of the purposes of attorney disciplinary proceedings). For example, we extended a suspension by three months where the sole violation was failure to notify clients of a suspension. See Comm, on Prof'l Ethics & Conduct v. Rauch, 508 N.W.2d 628, 628-29 (Iowa 1993). We ordered a six-month suspension for an attorney who did not properly deposit client funds in a trust account, did not maintain complete records of client funds and render proper accountings, did not keep records to show compliance with the trust account rules, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Mattson, 558 N.W.2d 193, 194-95 (Iowa 1997).

Once more, this is not Wickey’s first brush with the disciplinary process. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Pracht, 627 N.W.2d 567, 573 (Iowa 2001) (holding that prior discipline is an aggravating factor). In 1997 Wickey was publicly reprimanded for failing to provide a client with an appropriate accounting — similar to one of the violations in this case. In addition, in 2000, we suspended Wickey’s license to practice law for six months for failing to pay Iowa income tax and file Iowa income taxes in a timely manner for four years. Wickey, 619 N.W.2d at 320-21.

Given the number and nature of the present violations as well as Wickey’s prior discipline, we think Wickey’s conduct here warrants a suspension for a minimum period of six months. We therefore suspend Wickey’s license to practice law with no possibility of reinstatement for a period of six months from the filing of this opinion. The suspension applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). Upon application for reinstatement, Wick-ey shall have the burden to prove that he has not practiced law during the period of his suspension and that he meets the requirements of Iowa Court Rule 35.13. In addition, as a condition of reinstatement, Wickey must show that he has obtained the assistance of a bookkeeper or accountant to maintain complete and accurate records for his client trust account. See Mattson, 558 N.W.2d at 195.

Costs are taxed to Wickey pursuant to Iowa Court Rule 35.25, and payment of such costs shall also be a condition of reinstatement.

LICENSE SUSPENDED.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Mark Roberson BAKER, Appellant.
    No. 02-0968.
    Supreme Court of Iowa.
    April 7, 2004.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Stephen H. Holmes, County Attorney, and Mary Howell Sirna and Angelina Thomas, Assistant County Attorneys, for appellee.
   LARSON, Justice.

Mark Roberson Baker was convicted of third-degree sexual abuse in violation of Iowa Code sections 709.1(3) and 709.4(2)(6) (2001) and four counts of providing alcohol to a person under legal age in violation of Iowa Code sections 123.47(1) and 123.47(4). He appealed all of his convictions, but his argument on appeal does not address the alcohol convictions. The court of appeals affirmed. On the sexual-abuse portion of his appeal, the defendant challenges (1) the district court’s ruling denying his proffered evidence that the alleged victim, Julia, had earlier made a false claim of a sexual encounter with a neighbor, and (2) the defendant received ineffective assistance of counsel when his counsel failed to request a limiting instruction concerning the defendant’s prior convictions.

We vacate the decision of the court of appeals, affirm the convictions of providing alcohol to underage drinkers, reverse the conviction of third-degree sexual abuse, and remand for a new trial on the sexual-abuse charge. Because the defendant is to be given a new trial on other grounds, we do not address his ineffective-assistance-of-counsel claim.

I. Facts and Prior Proceedings.

Evidence was introduced at the trial from which the jury could have found the following facts. On June 7, 2001, Julia went with friends to a swimming pool in Ames. Julia, who was thirteen at the time, called the defendant, who was twenty-four, and arranged for him to come to the pool to get her. The defendant came to the pool, and his younger brother, Clinton, came in a separate car. Julia left the pool with the defendant, and Traci, one of Julia’s friends, left with his brother.

The group had planned to drink at the home of a third girl, Tyanne. However, Tyanne’s mother was home, and they decided to take their party to the country. They stopped at Char’s, an Ames convenience store, where the defendant bought wine coolers and beer. The group drove about three miles into the country and parked. Julia finished a forty-ounce beer in about ten minutes, encouraged by the defendant and his brother to “chug” it. While getting a second beer for Julia, the defendant and Julia kissed. Although Julia felt intoxicated, she continued to drink, with the defendant and his brother helping her tilt the bottles to drink them faster. Soon the girls began to look for a restroom, and the group headed back to Char’s, driving both cars. Julia again rode with the defendant. On the way to Char’s, the defendant pulled over to the side of the road where, according to Julia, they had sexual intercourse. Julia immediately told her friends, and at some point, she also told them she had on an earlier occasion had sexual relations with a neighbor. She later denied the “neighbor” incident.

Julia did not report the Baker incident to authorities, but about a week later, she told her sister about it. Her sister in turn told their mother, who initiated a police investigation, which began on June 16, 2001. Apparently because of the nine-day period between the incident and the commencement of the investigation, no medical evidence of the incident was produced.

An Ames detective interviewed the defendant on June 20, 2001. The defendant acknowledged knowing Julia, but he denied picking her up at the pool, denied going to Char’s, denied buying the alcohol, and denied going to the bridge with the teenagers. The defendant left the interview and immediately headed for California. He was ultimately arrested there and extradited to Iowa, where he was formally charged.

II. The Issue.

The only issue we address concerns the scope of the cross-examination of Julia (the complaining witness). The defendant contends the district court abused its discretion in refusing to allow cross-examination of Julia regarding the prior, allegedly false, claim of a sexual encounter with a neighbor.

The defendant filed a notice of his intention to introduce evidence of the false statement, and the State filed a motion in limine to prevent it. The court, through Judge Ruigh, held a hearing prior to trial to resolve the issue. The court ruled that, while evidence of false claims of sexual activity would be relevant, such evidence would be unfairly prejudicial and therefore inadmissible. See Iowa R. Evid. 5.403. The court declined to decide whether evidence of false claims of prior sexual behavior is precluded as “past sexual behavior” under our rape-shield law. The court ruled that allowing evidence of the victim’s false claim “would violate the spirit of the rape-shield law,” and in any event, the prejudice in such evidence would outweigh its probative value. Iowa Rule of Evidence 5.412(6), our rape-shield law, provides:

Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence is either of the following!)]

While Julia initially claimed previous sexual activity with her neighbor, she later denied it, and the defendant introduced evidence at the pretrial hearing that the story was false. The district court found that the claim of prior sexual behavior was false, and the State does not challenge that finding. For purposes of our discussion, we assume the claim was false.

III. Applicability of Rape-Shield Rule.

In State v. Alvey, 458 N.W.2d 850 (Iowa 1990), a sexual-abuse case, the defendant argued that the complaining witness had previously made false claims of sexual abuse and that evidence should have been allowed on the issue of her credibility. The State argued that the proffered evidence “was in substance that of past sexual conduct and hence subject to exclusion under the rape shield law.” Alvey, 458 N.W.2d at 852. We declined to decide whether the rape-shield rule applied, stating “in either event it was one of relevancy.” Id. We held that the district court had not abused its discretion in excluding the evidence because (1) “there was considerable doubt of the truth of the proffered testimony” regarding the victim’s earlier statements; (2) four years had passed since the alleged incident; and (3) in the end, it was a question of weighing the probative value of the evidence against its “cost in devastating the victim’s reputation and right to privacy.” Id. at 852-53. We now revisit the rationale of Alvey.

The first question is whether false claims of prior sexual behavior fall within our rape-shield law. While we have not decided this specific issue, we have ruled that a prior act of a prosecuting witness indirectly relating to sex is not sexual conduct for rape-shield-law purposes. In State v. Zaehringer, 280 N.W.2d 416 (Iowa 1979), we held that a prior act of posing nude did not constitute a prior sexual act. We said:

While there may be those to whom nude posing is sexually suggestive, to find nude posing to be “sexual conduct” within the meaning of [the rape-shield law] would be to place a strained and unreasonable construction on that statute.

Zaehringer, 280 N.W.2d at 420.

Virtually all cases considering the issue have found that false claims of prior sexual conduct do not fall within the coverage of rape-shield laws. For example, in State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288 (1989), the court stated:

We are persuaded to join the majority of jurisdictions which have considered the question and hold the rape shield statute simply does not apply. The testimony sought to be introduced is not of prior sexual conduct. As a result, evidence of prior false accusations of sexual abuse may be admissible to impeach the credibility of the complaining witness.

Barber, 766 P.2d at 1289-90 (citation omitted). In Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263, 264-65 (1988), the court held evidence of prior false accusations was admissible, despite a rape-shield law, and listed eight other jurisdictions reaching a similar conclusion. In State v. Boggs, 63 Ohio St.3d 418, 588 N.E.2d 813 (1992), the court stated that “[bjecause prior false accusations of rape do not constitute ‘sexual activity’ of the victim, the rape-shield law does not exclude such evidence. A great number of courts from other jurisdictions have also reached this conclusion.” Boggs, 588 N.E.2d at 817-18. See generally Nancy M. King, Annotation, Impeachment or Cross-Examination of Prosecuting Witness in Sexual Offense Trial by Showing That Similar Charges Were Made Against Other Persons, 71 A.L.R.4th 469, 478-82 (1989).

In an Oregon case, the court adopted the following definition of past sexual behavior, which we approve in interpreting our rape-shield law:

We hold that “past sexual behavior” means a volitional or non-volitional physical act that the victim has performed for the purpose of the sexual stimulation or gratification of either the victim or another person or an act that is sexual intercourse, deviate sexual intercourse or sexual contact, or an attempt to engage in such an act, between the victim and another person.

State v. Wright, 97 Or.App. 401, 776 P.2d 1294, 1297-98 (1989).

We conclude that prior false claims of sexual activity do not fall within the coverage of our rape-shield law. Because a false allegation of sexual activity is not sexual behavior, such statements fall outside both the letter and the spirit of the rape-shield law. The next issue is whether the district court abused its discretion in concluding that the unfair prejudice inherent in the evidence outweighed its probative value.

IV. The Prejudice Versus Probative Value Analysis.

In examining the district court’s weighing of the probative value of the evidence against its prejudicial effect, we must clarify Alvey in two respects. First, our observation in that case that “doubt of the truth of the proffered testimony” would reduce its probative value was incorrect. Actually, the more doubtful the witness’s story about previous sexual behavior the more probative it is. In other words, if the alleged victim was untruthful about the earlier sexual encounter with a neighbor, a fact finder might well conclude she was untruthful in accusing this defendant as well.

The second aspect of Alvey’s probative value/prejudice analysis that should be clarified regards the interests that are to be considered in the weighing process. Is it the interests of the state, the defendant, and the witness? We said in Alvey:

The rape-shield law calls upon the trial judge to sort through proffered evidence of a victim’s prior sexual activity and, on a case-by-case basis, to weigh whether it would yield more in the truth-finding process than it would cost in devastating the victim’s reputation and right to privacy. The rule presupposes that much evidence which the accused wishes to place before a jury will be excluded. This is a cost the legislature has determined must be paid in order to accord evenhanded justice, not only to the accused, but also the accuser.

458 N.W.2d at 853 (emphasis added).

This language suggests that the witness’s reputation and privacy interests are primary. However, outside a special law such as a rape-shield law (which does not apply here), courts weighing potential prejudice have shown little solicitude for the personal interests and sensibilities of nonparty witnesses. Wigmore has observed that testifying demands sacrifice of time and labor on the part of a witness,

[o]r the sacrifice may be of his privacy, of the knowledge which he would preferably keep to himself because of the disagreeable consequences of disclosure. This inconvenience which he may suffer, in consequence of his testimony, by way of enmity or disgrace or ridicule or other disfavoring action of fellow members of the community, is also a contribution which he makes in payment of his duties to society in its function of executing justice. If he cannot always obtain adequate solace from this reflection, he may at least recognize that it defines an unmistakable axiom. When the course of justice requires the investigation of the truth, no man has any knowledge that is rightly private. All that society can fairly be expected to concede is that it will not exact this knowledge when necessity does not demand it....

8 Wigmore, Evidence in Trials at Common Law § 2192, at 72 (McNaughton rev. 1961).

In this case, the witness might be embarrassed by evidence of her false account of a sexual encounter. However,

a witness is not excused from answering a question on the sole grounds that the answer will be embarrassing, or will subject the witness to disgrace, infamy, or disrepute so long as the information sought is material or relevant. The constitutional provisions that no person may be compelled in a criminal case to give self-incriminating evidence has no application to testimony found disgracing or embarrassing to the witness or subjecting the witness to opprobrium.

98 C.J.S. Witnesses § 541, at 514 (2002) (footnotes omitted).

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), a key witness for the state was a juvenile who had a record of juvenile offenses. Alaska’s law protected the anonymity of juvenile offenders. The defendant sought to cross-examine the witness with regard to his juvenile record, hoping to establish possible bias on the part of the witness. The trial court refused to allow the testimony on the ground disclosure of a juvenile record was prohibited by a state statute. The defendant was convicted and appealed. The Alaska Supreme Court affirmed, but the United States Supreme Court reversed, stating:

We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender. Here, however, [the defendant] sought to introduce evidence of [the witness’s] probation for the purpose of suggesting that [the witness] was biased and, therefore, that his testimony was either not to be believed in his identification of [the defendant] or at least very carefully considered in that light.
... [W]e conclude that the State’s desire that [the witness] fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the right of [the defendant] to seek out the truth in the process of defending himself.

Davis, 415 U.S. at 319-20, 94 S.Ct. at 1112, 39 L.Ed.2d at 355-56 (citation omitted).

Even a witness’s fear of personal injury generally does not relieve the witness of the duty to provide evidence. See Commonwealth v. Johnson, 365 Mass. 534, 313 N.E.2d 571, 577 (1974) (“Relief of witnesses on this ground would encourage intimidation of those in possession of information and proclaim a sorry confession of weakness of the rule of law.”).

Applying the principles of these authorities to the case before us, we conclude that, while the complaining witness might have been embarrassed by being shown to be a boaster, or even a liar, about a previous sexual experience, this is not the kind of unfair prejudice that will outweigh the probative value of clearly relevant evidence. This is especially so when, as in this case, the countervailing right of a defendant to present a defense to a criminal charge is at stake. See Davis, 415 U.S. at 320, 94 S.Ct. at 1112, 39 L.Ed.2d at 356; see also State v. Cox, 298 Md. 173, 468 A.2d 319, 324-25 (1983) (holding it was reversible error to refuse cross-examination of the victim regarding prior false claims); Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987, 990-91 (1978) (same).

We conclude that the district court abused its discretion in excluding the evidence of the prior false claim of sexual behavior. Accordingly, we vacate the decision of the court of appeals, affirm the judgment of the district court on the charge of furnishing alcohol to minors, reverse on the sexual-abuse charge, and remand for trial of the charge of sexual abuse.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.

      . The district court’s finding, and the State's apparent acquiescence, that the claim of prior sexual behavior was false, makes it unnecessary for us to address the procedures and standards to be applied in making that threshold determination. However, the determination can be critical. Valuable suggestions in making that determination are provided by State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997). The analysis involves the formulations for a defendant’s burden of showing falsity, i.e., whether falsity must be shown to be "demonstrably false,” false to a “reasonable probability," false as a "supportable contention,” or false by a "strong probability.” The court cites cases advocating each of these standards. Quinn, 490 S.E.2d at 40. These suggestions may be incorporated by the court in addition to the in camera hearing on the admissibility provided by rule of evidence 4.12(c)(2).