text:
    2006 ND 250
    In the Matter of the Petition of Brent J. EDISON. Brent J. Edison, Petitioner, v. A Hearing Panel of the Disciplinary Board of the North Dakota Supreme Court and William P. Harrie, Respondents.
    No. 20060091.
    Supreme Court of North Dakota.
    Dec. 5, 2006.
    Rehearing Denied Jan. 17, 2007.

      Brent J. Edison, Assistant Disciplinary Counsel, Bismarck, N.D., for petitioner.
    Mark R. Hanson, Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Fargo, N.D., for respondent William P. Harrie.
   REPRIMANDED

PER CURIAM.

[¶ 1] Disciplinary counsel petitioned this Court for review of a report of a hearing panel of the Disciplinary Board which ordered dismissal of a disciplinary proceeding against attorney William P. Harrie. We conclude there is clear and convincing evidence Harrie violated N.D.R. Prof. Conduct 4.1 and N.D.R. Lawyer Discipl. 1.2A(3), and we reprimand Harrie and order him to pay costs of $6,060.68.

I

[¶ 2] This disciplinary proceeding stems from an underlying lawsuit arising from a December 27, 1995 automobile accident in Fargo in which Sefin Muhammed was a passenger in a vehicle that was hit by a vehicle driven by Ellen Welch. Welch died from unrelated causes in April 1998. Muhammed’s attorney was not aware of Welch’s death, and on September 12, 2001, Muhammed sent a summons and complaint by certified mail, restricted delivery, to “Ellen Welch, P.O. Box 751, Dalton, MN 56324.” Pat Welch, Ellen Welch’s widower, received and signed for the certified mail on September 13, 2001, and gave the summons and complaint to his insurance agent. The agent forwarded the summons and complaint to Ellen Welch’s insurance company and informed the company she had died. Settlement discussions between Muhammed’s attorney and an insurance adjuster continued until March 13, 2002, when Muhammed’s attorney withdrew an indefinite extension of time to serve an answer and informed the adjuster an answer was due by April 15, 2002.

[¶ 3] On March 14, 2002, Harrie was retained by the insurance company to defend the lawsuit. On March 18, 2002, Har-rie received a file from the insurance company which included a letter from Welch’s insurance agent to the insurance company indicating Ellen Welch had died. The file did not indicate when Ellen Welch had died or how Muhammed had served process on her. On March 27, 2002, Harrie served an answer on Muhammed on behalf of “Defendant Ellen Welch.” On April 10, 2002, Harrie conferred with Pat Welch and learned about Ellen Welch’s death in April 1998, and about the circumstances of Pat Welch’s receipt of the summons and complaint. Harrie also learned that no probate proceedings had been initiated after Ellen Welch’s death and no personal representative had been appointed for her estate. On April 10, 2002, Harrie requested proof of service from Muhammed’s attorney and served an amended answer on Muhammed on behalf of “Defendant Ellen Welch,” alleging insufficiency of service of process. In May 2002, Muhammed’s attorney provided Harrie with proof of service for the lawsuit. On May 23, 2002, Harrie informed Muhammed’s attorney that “Ellen Welch’s surviving husband, Patrick [Welch], signed for the certified mail” and “it appears that service was improper and that the claim against Ellen Welch is barred by the statute of limitations.” On May 27, 2002, Muhammed’s attorney responded “[t]here is nothing in my file that [Ellen Welch] had died.”

[¶4] The district court subsequently granted summary judgment dismissal of Muhammed’s action against Welch, concluding the action was barred by the statute of limitations. In Muhammed v. Welch, 2004 ND 46, ¶ 12, 675 N.W.2d 402, we concluded the service of process was insufficient. However, we reversed the summary judgment and remanded for further proceedings to determine whether Welch was equitably estopped from claiming the statute of limitations as a defense. Id. at ¶¶ 33-34.

[¶ 5] In July 2005, disciplinary counsel petitioned for discipline against Harrie, alleging he violated N.D.R. Prof. Conduct 4.1, which provides that in the course of representing a client, a lawyer shall not make a statement of fact or law that the lawyer knows to be false, and N.D.R. Lawyer Discipl. 1.2A(3), which provides that a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

[¶ 6] A hearing panel of the Disciplinary Board found Harrie was retained by the insurance company on March 14, 2002, to defend Muhammed’s action against Ellen Welch, and Harrie received written materials from the insurance company on March 18, 2002, which included a letter indicating Welch had died. The panel found that letter did not indicate the date of Welch’s death or the manner in which she had been served, and Harrie served an answer on behalf of “Defendant Ellen Welch” on March 27, 2002. The panel found that when Harrie served the initial answer, both Harrie and Muhammed’s attorney were not aware of the three-month tolling provision for the statute of limitations in N.D.C.C. § 30.1-19-02. The panel also found that when Harrie served the initial answer, there was no evidence Har-rie knew (1) the date of Ellen Welch’s death, (2) that service of process on Ellen Welch was insufficient, or (3) that Mu-hammed’s attorney did not know Ellen Welch had died. The panel found that Harrie’s answer, which used the phrase “Defendant Ellen Welch,” was “stylistic boilerplate customarily employed by Har-rie.” The panel found it was possible Mu-hammed’s attorney may have been misled by the use of the term “Defendant Ellen Welch” in Harrie’s initial answer, but Har-rie’s lack of knowledge of the date of Ellen Welch’s death and of the manner of service of process, and Muhammed’s attorney’s lack of information regarding Ellen Welch’s death all indicated Harrie did not intend to mislead or deceive Muhammed’s attorney. The hearing panel concluded Harrie did not knowingly make a false statement or misrepresentation in violation of N.D.R. Prof. Conduct 4.1 and he did not engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of N.D.R. Lawyer Discipl. 1.2A(3). The hearing panel ordered dismissal of the petition for discipline against Harrie. We granted disciplinary counsel’s petition under N.D.R. Lawyer Discipl. 3.1F(1) for review of the hearing panel’s decision.

II

[¶ 7] We review disciplinary proceedings against attorneys de novo on the record. In re Chinquist, 2006 ND 107, ¶ 7, 714 N.W.2d 469. Disciplinary counsel must prove each alleged violation of a disciplinary rule by clear and convincing evidence. Id. We decide each case on its own facts, and although we give due weight to the findings, conclusions, and recommendations of a hearing panel, we do not act as a rubber stamp. Id.

III

[¶ 8] Disciplinary counsel argues the evidence clearly and convincingly establishes Harrie violated N.D.R. Prof. Conduct 4.1 and N.D.R. Lawyer Discipl. 1.2A(3) by failing to immediately disclose Welch’s death and by serving an answer and an amended answer on her behalf which falsely suggested she was still living. Disciplinary counsel concedes Harrie lacked a specific intent to mislead or deceive his adversary about the statute of limitations or the manner of service of process, but argues the hearing panel erred in ending its inquiry there. Disciplinary counsel argues that by filing answers on behalf of “Defendant Ellen Welch” and by failing to disclose Welch’s death to his adversary until after Harrie knew there was a problem with service of process, Harrie acted “knowingly” and “negligently” under the standards for imposing discipline and his conduct warrants a reprimand. Harrie responds he did not have a duty to immediately disclose Ellen Welch’s death to opposing counsel and the timing of his answers did not prejudice Muhammed. Harrie also argues he did not make an affirmative representation that falsely suggested Ellen Welch was alive. Harrie argues no sanction is warranted and he seeks dismissal of the petition.

A

[¶ 9] Rule 1.2A(3), N.D.R. Lawyer Discipl., provides that a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 4.1, N.D.R. Prof. Conduct, provides that “[i]n the course of representing a client a lawyer shall not make a statement to a third person of fact or law that the lawyer knows to be false.” At the time the hearing panel issued its decision and before an August 1, 2006 amendment, the official comment to Rule 4.1 provided that “[a] lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.” The rules of professional conduct define “knows” to mean “actual knowledge of the fact in question” and “fraud” to mean “conduct having a purpose to deceive and not merely negligent misrepresentation or negligent failure to apprise another of relevant information.” N.D.R. Prof. Conduct, Terms. Additionally, the definitions in the North Dakota Standards for Imposing Lawyer Sanctions are incorporated into the North Dakota Rules for Lawyer Discipline by N.D.R. Lawyer Discipl. 1, and define “intent” as “the conscious objective or purpose to accomplish a particular result,” “knowledge” as “the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result,” and “negligence” as “the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.”

[¶ 10] The official comment to Rule 4.1 makes clear that an attorney generally does not have an affirmative duty to inform an opposing party of relevant facts, and we reject disciplinary counsel’s assertion that Harrie had an affirmative duty to immediately disclose Ellen Welch’s death before serving any pleadings in this case. However, Harrie served an answer and amended answer on behalf of Ellen Welch, and at least by the time of the amended answer, Harrie had actual knowledge that Welch had died.

[¶ 11] In Muhammed, 2004 ND 46, ¶ 26, 675 N.W.2d 402, we quoted Yoh v. Hoffman, 29 Kan.App.2d 312, 27 P.3d 927, 931 (2001) for the proposition that “ ‘[k]nowingly filing a pleading on behalf of a dead person as though he or she is still alive is fraud.’ ” In Yoh, 27 P.3d at 929, the plaintiff was injured in a car accident. The defendant died several months later, and the plaintiff thereafter filed a personal injury action against the defendant. Id. Later, an attorney filed an answer on behalf of the defendant, signing the pleadings as “Attorneys for Defendant.” Id. The plaintiffs attorney was not aware of the defendant’s death until almost a year later during a case management conference. Id. The plaintiff moved to amend to name the administrator of the defendant’s estate as the defendant. Id. The estate moved for summary judgment, claiming the statute of limitations had expired before the plaintiff served the administrator of the estate. Id. The trial court decided the action was properly filed within the statute of limitations. Id. The Kansas Court of Appeals held that the amended petition related back to the filing of the original petition under Kansas law. Id. at 930-31. The court alternatively said that “[k]nowingly filing a pleading on behalf of a dead person as though he or she is still alive is fraud.” Id. at 931. The court said the estate, its counsel, and an insurance company deliberately conspired to deceive their opponent, and the court concluded it was totally inappropriate to file an answer as “Attorneys for Defendant” because that answer was calculated to mislead by hiding the true state of affairs behind vague boilerplate defenses. Id.

[¶ 12] Although Harrie’s conduct is not as egregious as the attorney’s actions in Yoh and Harrie may not have intended to mislead or deceive Muhammed’s attorney, Harrie’s amended answer implied that Ellen Welch was alive and Muhammed’s attorney testified there was nothing in the amended answer that changed the attorney’s assumption that Ellen Welch was alive. Moreover, Harrie’s evidence that filing boilerplate pleadings is standard insurance defense practice does not supersede a lawyer’s obligation to not make a statement the lawyer knows to be false.

[¶ 13] Relying on Kimball v. Landeis, 2002 ND 162, 652 N.W.2d 330, Harrie nevertheless argues he had no affirmative duty to immediately inform Muhammed of Ellen Welch’s death and the timing of his answers did not harm or prejudice Mu-hammed because those answers could not have affected Muhammed’s failure to timely serve Welch. Kimball was a negligence action against Landeis, whose mother had been appointed Landeis’s legal guardian before the plaintiff served the summons and complaint on him. Id. at ¶ 2. Landeis moved to dismiss the action because the plaintiff had not served Landeis’s guardian. Id. at ¶ 3. After the district court quashed the service on Landeis, the plaintiff personally served Landeis’s guardian, but the statute of limitations had expired by then. Id. at ¶ 4. The district court granted Landeis’s motion for summary judgment. Id.

[¶ 14] We affirmed the dismissal of the negligence claim against Landeis, holding it was barred by the statute of limitations and the plaintiff had failed to establish reasonable and good faith action which would entitle him to equitable tolling. Kimball, 2002 ND 162, ¶¶ 1, 33, 652 N.W.2d 330. We said that although Lan-deis was not obligated to inform the plaintiff about the guardianship before the expiration of the statute of limitations, the defendant’s answer should have reflected the guardianship status and we did not condone that failure. Id. at ¶¶ 30-31. However, the record reflected an affidavit of mailing of Landeis’s answer by counsel on the day the statute of limitations expired, and under those circumstances, we concluded Landeis’s failure to identify the guardianship in his answer could not have affected the plaintiffs failure to timely serve Landeis’s guardian. Id. at ¶ 31. In the context of rejecting the plaintiffs argument for equitable tolling of the statute of limitations, we concluded the plaintiff failed to establish reasonable and good faith action which would entitle the plaintiff to equitable tolling. Id. at ¶¶ 32-33.

[¶ 15] In Muhammed, 2004 ND 46, ¶ 30, 675 N.W.2d 402, we distinguished Kimball from the factual scenario relevant to this disciplinary proceeding because the equitable estoppel doctrine relied upon by Muhammed was not an issue in Kimball and there were factual issues about whether Welch was equitably estopped from relying upon the statute of limitations. Kimball was not a disciplinary proceeding, and our statement about a party’s obligation to inform another party of a guardianship before the expiration of a statute of limitations must be read in the context of the equitable tolling claim at issue in that ease. Moreover, Kimball does not establish a requirement of prejudice for a violation of our rules of professional conduct.

[¶ 16] Although we may agree with the hearing panel’s finding that Har-rie’s conduct does not rise to the level of an intent to mislead or deceive Muhammed or his counsel, that finding does not necessarily end our inquiry about whether Har-rie’s actions violated the proscription against making a statement the lawyer knows to be false in N.D.R. Prof. Conduct 4.1 or the proscription against a misrepresentation in N.D.R. Lawyer Discipl. 1.2A(3). Under the rules for professional disciplinary proceedings, a knowing act does not require an evil intent or a bad purpose; rather, the term means the act was done in the exercise of the performer’s free will and was not done under coercion. In re Bullis, 2006 ND 228, ¶ 25, 723 N.W.2d 667; In re LaQua, 548 N.W.2d 372, 376 (N.D.1996). Here, even if Har-rie’s conduct did not rise to the level of an intent to mislead or deceive Muhammed’s attorney we conclude, at a minimum, the evidence clearly and convincingly establishes the amended answer served by Har-rie on behalf of “Defendant Ellen Welch” constituted a statement known to be false under N.D.R. Prof. Conduct 4.1 and a misrepresentation under N.D.R. Lawyer Discipl. 1.2A(3). See also N.D.R. Lawyer Discipl. 1.2A(1) [“lawyer may be disciplined for ... [violating ... the North Dakota Rules of Professional Conduct”].

B

[¶ 17] Under N.D. Stds. Imposing Lawyer Sanctions 2.0, potential sanctions for Harrie’s conduct include disbarment, suspension, reprimand, and assessment of costs. See In re Boulger, 2001 ND 210, ¶¶ 14-17, 637 N.W.2d 710. In determining a proper sanction, N.D. Stds. Imposing Lawyer Sanctions 3.0 directs this Court to consider “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.” Under N.D. Stds. Imposing Lawyer Sanctions 5.13, a reprimand is generally appropriate when a lawyer knowingly engages in any conduct that involves misrepresentation. Under N.D. Stds Imposing Lawyer Sanctions 6.13, a reprimand is generally appropriate when a lawyer is negligent in determining whether statements are false and the lawyer’s conduct causes injury or potential injury to a party to a legal proceeding or causes an adverse or potentially adverse effect on the legal proceeding. Under those standards, we conclude a reprimand is the appropriate sanction for Harrie’s violation of N.D.R. Prof. Conduct 4.1 and N.D.R. Lawyer Discipl. 1.2A(3).

IV

[¶ 18] We issue this opinion as a reprimand for Harrie’s conduct and direct him to pay costs of the disciplinary proceeding in the amount $6,060.68.

[¶ 19] GERALD W. VANDE WALLE, C.J., and WILLIAM F. HODNY, S.J., EVERETT NELS OLSON, S.J., and DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

[¶ 20] The Honorable EVERETT NELS OLSON, S. J., and the Honorable WILLIAM F. HODNY, S.J., sitting in place of CROTHERS, J., and KAPSNER, J., disqualified.


source: Caselaw Access Project

author: GORS, Circuit Judge. ZINTER, Justice BASTIAN, Circuit Judge

license: Public Domain

text:
    2006 SD 99
    Dwain ORTH, Claimant and Appellant, v. STOEBNER & PERMANN CONSTRUCTION, INC., Employer and Appellee, and American Family Mutual Insurance Co., Insurer and Appellee.
    No. 23731.
    Supreme Court of South Dakota.
    Argued Feb. 15, 2006.
    Decided Nov. 15, 2006.
    Rehearing Denied Dec. 28, 2006.

      Ronald A. Parsons, Jr., and A. Russell Janklow of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, SD, Glenn L. Roth, Olivet, SD, for appellant.
    Jeffrey L. Bratkiewicz and J.G. Shultz of Woods, Fuller, Shultz & Smith, Sioux Falls, SD, for appellees.
   GORS, Circuit Judge.

[¶ 1.] Dwain Orth appeals from a circuit court decision affirming the South Dakota Department of Labor’s determination that he was not entitled to workers’ compensation benefits. Reversed and remanded.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Dwain Orth (Dwain) was born in Scotland, South Dakota, on February 22, 1942. He graduated from Scotland High School in 1960. He lived and worked in South Dakota his entire life. In 1962 Dwain married Rita. They had two children.

[¶ 3.] After graduating from high school Dwain held a variety of jobs. From 1972 through 1976 Dwain worked for Car-gill Grain Elevator in Scotland, South Dakota. On rare occasions the job required heavy lifting. Dwain did not sustain a work-related injury while at Cargill, but he did at times seek chiropractic treatment for both general maintenance adjustments and also for back pain.

[¶ 4.] From 1976 through 1988 Dwain drove a concrete truck, performed carpentry work, and was responsible for general maintenance at Scotland Redi-Mix in Scotland, South Dakota. In 1978 Dwain injured his ankle while working for Scotland Redi-Mix. His injury was treated as com-pensable. Dwain made a full recovery and returned to work. During the twelve years Dwain was employed by Scotland Redi-Mix he would occasionally seek chiropractic treatment for general maintenance adjustments and back pain.

[¶ 5.] From 1989 through 1994 Dwain performed general carpentry for Slaba Construction in Tripp, South Dakota. While employed by Slaba Construction Dwain continued occasional chiropractic treatment. In 1993 Dwain slipped on a roof while carrying a bundle of shingles and injured his back. He sought treatment from Dr. Merkwan, a chiropractor in Tyndall, South Dakota. Dwain made a full recovery and did not file any workers’ compensation claim while employed by Slaba Construction.

[¶ 6.] Dwain began working for Stoeb-ner & Permann Construction, Inc. (S & P Construction) in March of 1994. S & P Construction was founded in 1980 by Keith Stoebner (Stoebner) and Steven Permann (Permann). The company was involved in various types of construction and remodeling. Stoebner and Permann were hands-on owners who worked side-by-side with their employees.

[¶ 7.] As an employee of S & P Construction Dwain was expected to perform a variety of tasks from pouring concrete to hanging sheetrock to shingling roofs. His work-related duties required bending, stooping, and heavy lifting.

[¶ 8.] When Dwain started working for S & P Construction in 1994 he was in excellent physical condition and was able to perform all work-related tasks. Dwain worked ten-hour days, five days per week. His employers described him as an “exceptional worker” and a “very good employee” who “worked very hard.”

[¶ 9.] Dwain worked for S & P Construction for several years without incident. By the late 1990s, however, Dwain was approaching sixty years of age and his back was starting to give him trouble. He found it increasingly more difficult to perform heavy physical labor as an employee of S & P Construction.

[¶ 10.] Dwain asked his employers to be assigned light-duty tasks. S & P Construction valued Dwain as an employee and assigned him to light-duty to keep him on the job. S & P Construction was aware of Dwain’s increasing back trouble, and the decision to relegate Dwain to light-duty tasks was based, in part, on this knowledge. Around this time Dwain started taking pain medication for his back.

[¶ 11.] Later in the Spring of 2000 Dwain asked his employers to reduce his work schedule from five days a week to four. His back condition had continued to worsen, and Dwain believed that an extra day off would help him to recuperate and allow him to continue working for S & P Construction. S & P Construction granted his request. Dwain’s employers understood that this request was made due to Dwain’s worsening back problems.

[¶ 12.] Neither the light-duty nor the shortened work-week alleviated Dwain’s back pain. On the evening of May 15, 2001, Dwain came home from work in intense pain. Dwain’s wife took him to the emergency room. He believed he had a kidney stone. The emergency room personnel questioned Dwain to determine the source of the pain. Dwain indicated that he had not strained his back. Tests revealed degenerative changes in Dwain’s spine. The emergency room doctors concluded this was the most likely cause of his back pain. Dwain did not have a kidney stone.

[¶ 13.] Dwain was unable to work for several weeks after the emergency room visit. On May 30, 2001, Dwain saw Dr. Stolz, a chiropractor in Scotland, South Dakota. Dr. Stolz conducted a physical examination and reviewed Dwain’s x-rays. Dr. Stolz confirmed the existence of degenerative changes in Dwain’s spine.

[¶ 14.] Dwain also sought treatment from Dr. Gail Benson of the Orthopedic Institute in Sioux Falls. Dwain saw Dr. Benson on June 6, 2001. Dwain indicated to Dr. Benson that his back pain began about twenty years earlier, but that it had worsened over time. Dr. Benson recommended an MRI exam and a discography.

[¶ 15.] On June 8, 2001, Dr. Stolz told Dwain he could return to work on the condition that he limit himself to light-duty work and refrain from all heavy lifting. Dwain did in fact return to work, but even with light-duty tasks his back pain was unbearable. Ultimately, Dwain’s back condition became so debilitating that on July 17, 2001, he was forced to quit his job with S & P Construction. Dwain told his employers that his back pain had worsened to the point that he “couldn’t do the work anymore.” Dwain explained that his back pain was caused by “degenerated discs and wore [sic] out.”

[¶ 16.] Dwain continued treatment for his back condition. On August 1, 2001, Dr. Benson noted that Dwain’s MRI and discography confirmed “extensive torn degenerated disc [sic] throughout the lumbar spine.” Dr. Benson indicated that Dwain was not a surgical candidate due to the large number of injured discs. Dr. Benson determined that Dwain should be considered disabled for social security purposes because he could no longer do the physical labor required of a carpenter.

[¶ 17.] Dr. Walter Carlson, another of Dwain’s doctors at the Orthopedic Institute in Sioux Falls, agreed with Dr. Benson’s evaluation, indicating in a clinical note that there was no “surgical treatment that will give [Dwain] predictable improvement in his condition.” Dr. Carlson further noted that Dwain would not “be able to carry out any type of employment that he is trained to do — be it standing or sitting.” Dr. Carlson agreed with Dr. Benson’s conclusion that Dwain was totally disabled and should be awarded social security disability benefits.

[¶ 18.] Dwain filed for and was awarded social security total and permanent disability benefits.

[¶ 19.] On March 5, 2002, Dr. Carlson wrote a letter to Russell Janklow, Dwairis attorney. At the time of the hearing Dr. Carlson was a board-certified orthopedic surgeon with over thirty years of experience in his field. He was one of Dwairis treating physicians for over a year. He practiced medicine in the same office as Dr. Benson, one of Dwairis treating physicians. In his letter Dr. Carlson indicated that he was unable to determine the major contributing cause of Dwairis back condition, but if he was asked to apportion it, he would conclude that fifty percent of Dwairis condition came as a result of “work related issues” and fifty percent came as a result of Dwairis “pre-existing degenerative changes.”

[¶ 20.] On or about May 20, 2002, S & P Construction received a South Dakota Employer’s First Report of Injury form indicating that Dwain was claiming a work-related injury and was seeking workers’ compensation benefits. The date of injury was indicated to be May 14, 2001. Stoeb-ner completed the form. In the box for “Body Part Injured” Stoebner entered code 18, which indicated a back injury. Stoebner described the injury in the following manner: “employee said his back can not [sic] take this kind of work.”

[¶ 21.] On June 14, 2002, S & P Construction and their Insurer, American Family Mutual Insurance Company filed their joint answer denying responsibility for benefits.

[¶22.] On April 29, 2003, Dr. Richard Farnham conducted an independent medical examination on Dwain. Dr. Farnham reviewed Dwairis medical records and physically examined him. Dr. Farnham diagnosed Dwain with “mechanical low back pain due to multi-level intervertebral disk degeneration and non-traumatic, congenital grade I — II spondylolisthesis of L5 on SI with low back pain.” Dr. Farnham opined that Dwain’s career in manual labor had no impact on his pre-existing degenerative back condition. He indicated that none of Dwain’s employment duties — while employed at S & P Construction or elsewhere — worked “to either temporarily exacerbate or permanently aggravate” his back condition. Dr. Farnham’s report concluded that Dwairis condition was not work-related but instead was “a function of time and the aging process and past history of tobacco use for 30 years.”

[¶ 23.] A hearing on Dwairis application for workers’ compensation benefits was held before a Department of Labor (Department) hearing examiner on January 29, 2004, in Sioux Falls. Three issues were presented in the case: 1) whether Dwairis injury was causally connected to his work activities at S & P Construction, 2) whether S & P Construction had actual knowledge or notice of Dwairis work-related injury, and 3) whether Dwain was permanently and totally disabled under South Dakota’s odd-lot doctrine.

[¶ 24.] The hearing examiner ruled in favor of S & P Construction and its Insurer, American Family Mutual Insurance Company, concluding that Dwain failed to prove causation. The hearing examiner did not rule on issues two (notice) or three (odd-lot).

[¶25.] Dwain appealed to the circuit court. The First Circuit Court affirmed the hearing examiner’s finding on causation. The circuit court also ruled on the notice issue, which had not been addressed by the hearing examiner. The circuit court filed supplemental findings of fact and conclusions of law and an order ruling that S & P Construction did not have actual knowledge or notice of the work-relatedness of Dwain’s back condition.

[¶ 26.] Dwain timely appealed to this Court. His back condition continues to be debilitating. Due to the severity of his pain Dwain is unable to perform most manual labor and physical tasks around the house. He wears a brace on his lower back when driving. He is unable to take his fishing boat out unless someone is there to help him load and unload the boat.

STANDARD OF REVIEW

[¶ 27.] The standard of review in a workers’ compensation case is established by SDCL 1-26-36 (Tisckler v. United Parcel Service, 1996 SD 98, ¶ 23, 552 N.W.2d 597, 602) and SDCL 1-26-37 (Capital Motors v. Schied, 2003 SD 33, ¶ 10, 660 N.W.2d 242, 245). Under SDCL 1-26-36, the applicable standard of review “will vary depending oh whether the issue is one of fact or one of law.” Tischler, 1996 SD 98, ¶ 23, 552 N.W.2d at 602. “When the issue is a question of fact, then the actions of the agency are judged by the clearly erroneous standard; and when the issue is a question of law, then the actions of the agency are fully reviewable [i.e., de novo].” Id. “Mixed questions of fact and law are fully reviewable.” Brown v. Douglas Sch. Dist., 2002 SD 92, ¶ 9, 650 N.W.2d 264, 268.

[¶ 28.] When findings of fact are made based on live testimony, the clearly erroneous standard applies. See Brown, 2002 SD 92, ¶9, 650 N.W.2d at 267-68. Deference and great weight are given to the hearing examiner on fact questions. Id. at 267. “When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule.” Id. at 268.

[¶ 29.] “ ‘The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo: unaided by any presumption that the trial court is correct.’ ” Capital Motors, 2003 SD 33, ¶ 10, 660 N.W.2d at 245 (quoting Brown, 2002 SD 92, ¶ 17, 650 N.W.2d at 269). While the hearing examiner’s resolution of fact questions is given great weight, the circuit court will receive no such deference.

[¶ 30.] In the present case only one issue, causation, is technically subject to review. The hearing examiner did not rule on notice and neither the hearing examiner nor the circuit court ruled on the odd-lot issue.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 31.] Was Dwain’s back disability causally connected to his work at S & P Construction?

[¶ 32.] SDCL 62-1-1(7) sets forth the standard an employee must meet to prevail in a workers’ compensation case. To be awarded benefits, an employee must first establish that he has suffered an “injury arising out of and in the course of the employment[.]” Id. See also Horn v. Dakota Pork, 2006 SD 5, ¶ 14, 709 N.W.2d 38, 41 (“Our law requires a claimant to establish that his injury arose out of his employment by showing a causal connection between his employment and the injury sustained.”). “ ‘This causation requirement does not mean that the employee must prove that [his] employment was the proximate, direct, or sole cause of [his] injury; rather the employee must show that [his] employment was a ‘contributing factor to [his] injury.’ ” Brown, 2002 SD 92, ¶ 19, 650 N.W.2d at 270 (quoting Arends v. Dacotah Cement, 2002 SD 57, ¶ 13, 645 N.W.2d 583, 587-88) (emphasis in original).

[¶ 33.] If the injured claimant suffers from “a preexisting disease or condition” unrelated to the injury, and the injury combines with the preexisting condition “to cause or prolong disability, impairment, or need for treatment,” the injury is compensable only if the claimant can prove that his “employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment^]” SDCL(7)(b). In short, in a case involving a preexisting disease or condition, a workers’ compensation 62-1-1 claimant must satisfy two tests of causation in order to prevail on his claim: 1) causation of the injury (contributing factor test), and 2) causation of the disability (major contributing cause test). See Brown, 2002 SD 92, ¶ 19, 650 N.W.2d at 270.

[¶34.] With respect to proving causation of a disability, this Court has stated that:

[T]he testimony of professionals is crucial in establishing this causal relationship because the field is one in which laymen ordinarily are unqualified to express an opinion. Unless its nature and effect are plainly apparent, an injury is a subjective condition requiring an expert opinion to establish a causal relationship between the incident and the injury or disability.

Westergren v. Baptist Hospital of Winner, 1996 SD 69, ¶ 31, 549 N.W.2d 390, 398 (quoting Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992)). A medical expert’s finding of causation cannot be based upon mere possibility or speculation. Deuschle v. Bak Const. Co., 443 N.W.2d 5, 6 (S.D.1989). See also Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶21, 653 N.W.2d 247, 252-53 (quoting Day, 490 N.W.2d at 724) (“ ‘Medical testimony to the effect that it is possible that a given injury caused a subsequent disability is insufficient, standing alone, to establish the causal relation under [workers’] compensation statutes.’ ”). Instead, “[c]ausation must be established to a reasonable medical probability[.]” Truck Ins. Exchange v. CNA, 2001 SD 46, ¶ 19, 624 N.W.2d 705, 709.

[¶ 35.] claimant has the burden of proving the facts necessary to sustain an award of compensation. King v. Johnson Bros. Construction Company, 83 S.D. 69, 73, 155 N.W.2d 183, 185 (1967). The claimant must prove the essential facts by a preponderance of the evidence. Caldwell v. John Morrell & Co., 489 N.W.2d 353, 358 (S.D.1992).

[¶ 36.] The issue in this case does not concern whether or not Dwain’s injury arose out of and in the course of his employment with S & P Construction (ie., causation of the injury). Instead, the issue deals solely with the causation of Dwain’s disability, and resolution of this issue turns on the medical evidence. Dwain’s expert, Dr. Walter Carlson, offered the following opinion:

We recently reviewed all the records of Mr. Orth. After reviewing this history and all other data’s [sic] available to us, it is not possible for me to determine which of the patient’s work related activities or the patient’s pre-existing degenerative changes are the major contributing cause of his disability impairment and the need for medical treatment. If we are asked in the future to apportion this, we would give it a 50% to the preexisting degenerative problems and 50% to the work related issues.

S & P Construction’s expert, Dr. Richard Farnham, opined that Dwain’s condition was not work-related but instead was “a function of time and the aging process and past history of tobacco use for 30 years.” The hearing examiner concluded that Dr. Carlson’s letter failed “to establish that [Dwain’s] employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment in combination with his preexisting condition.” The hearing examiner accepted Dr. Farn-ham’s opinion. Dwain’s claim was consequently denied for failure to prove causation of the disability.

[¶ 37.] The circuit court affirmed the hearing examiner on this issue. The circuit court found that, although Dr. Carlson was an expert qualified to render an opinion in the matter, his letter dated March 5, 2002, was insufficient to prove causation of Dwain’s disability. The circuit court found Dr. Carlson’s letter contained “only a vague reference to [Dwain’s] records and data that were reviewed and provided no foundation as to the reasonable degree of certainty that Dr. Carlson’s opinions were based on.”

[¶ 38.] All of the medical evidence in this case was presented by way of reports, medical records and letters stipulated into evidence. There was no live testimony on the causation issue. Consequently, although “ ‘[i]ssues of causation in worker’s compensation cases are factual issues’ ” ordinarily subject to clearly erroneous review (Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 8, 545 N.W.2d 834, 836 (quoting Lawler v. Windmill Restaurant, 435 N.W.2d 708, 709 (S.D.1989))), in this ease the hearing examiner’s and circuit court’s findings are reviewed de novo. Brown, 2002 SD 92, ¶ 9, 650 N.W.2d at 267-68.

[¶ 39.] Dwain’s case is similar to Horn, 2006 SD 5, 709 N.W.2d 38. In Horn, a workers’ compensation claimant suffered two work-related back injuries: one in 1997 while employed by Dakota Pork, and another in 2000 while employed by Riverside Manufacturing. The issue in Horn was whether either injury was a major contributing cause of his back condition. The employers’ expert medical testimony was provided by Dr. Richard Farnham (the same doctor who testified on behalf of the employer in this case), who diagnosed the claimant with “mechanical low back pain due to degenerative changes of the lumbosacral spine compatible with age rather than trauma.” Id. ¶ 8. To prove causation, the claimant relied on the opinion of Dr. Gail Benson (the same doctor who treated Dwain in this case), who diagnosed Horn with “ankylosing spondylitis and chronic low back pain.” Id. ¶ 9. “Dr. Benson attributed the former to a preexisting genetic condition unrelated to Horn’s work and the latter to long term spinal changes from repetitive lifting and bending over his lifetime.” Id. ¶ 17. Horn pointed to the following testimony from Dr. Benson to support the compensability of his condition:

Q: The second disorder, the degenerative disc problem, is that problem, how did that come about from a pathologic standpoint, is that something that was contributed to over the years by his bending, lifting and stooping work activities?
A: That’s very likely and probable but how to pin that down to a certain event is very difficult. You can look at x-rays as you go along and see if it’s been preexisting. That’s the only other way I know.
Q: And just so that I keep that straight, this man worked at one place from 1990 to 1997, seven years, and I can represent to you that he worked, this was at Dakota Pork where he did a significant amount of twisting, bending and stooping, although the lifting that he did wasn’t all that heavy but it was continuous. Then after that he worked for a three-year period from about 1997 or 1998, about a two year period, from 1997 to '98 where he was doing a welding job that I don’t believe there was a lot of heavy lifting there either but there was a lot of lifting, bending and stooping. Are you going to be able to tell us which one of those two positions, the first seven years at Dakota Pork or the last two years at Riverside Manufacturing, which one of those two working positions or the work activities, would you be able to tell us which one of those places the work activities were a major contributing cause of the progression of the degenerative disc disease, Doctor?
A: I cannot be specific on that issue.
Q: Would it be your opinion that both of those previous employments then contributed on an equal basis to the progression of the disease, Doctor?
A: I believe all of these repetitive jobs are contributory, but I would place that over a lifetime rather than just over a ten-year period.
Q: ... the part that I’m struggling with, Doctor, is this gentleman was able to work and then at some point got into a situation where he was no longer able to continue to work, and I guess the question we have for you is whether the cumulative work activities over the last ten years, were those activities, it doesn’t have to be ‘the’ major contributing factor but simply “a” major contributing factor in his resultant disability and the reason he’s not working today? A: Oh, I believe it is a contributing factor.
Q: And I know this gets a little difficult and I know it’s not an exact science, but is it fair for me to state that you’re not able to quantify from a percentage standpoint if we were trying to apportion it how much of this problem is related to his first seven years at Dakota Pork and the following two, two and a half years at Riverside Manufacturing? Are you able to apportion that for us, Doctor?
A: I don’t believe so.

Id. at 42-43. This Court found Dr. Benson’s opinion insufficient to establish causation because he was “unable to state that Horn’s degenerative disc or his employment was a major contributing cause of his current disability.” Id. ¶ 18.

[¶ 40.] Dwain’s condition is similar to the condition of the claimant in Horn. Both worked in physically demanding professions for long periods of their lives. Both suffered from degenerative changes in their spines. Both were evaluated by Dr. Farnham, who concluded that both Dwain’s and Horn’s back problems were not related to their employment but rather were a result of their age. Both were treated by Dr. Benson at the Orthopedic Institute in Sioux Falls.

[¶ 41.] Contrast Dr. Benson’s opinion in Horn with Dr. Carlson’s opinion in this case. Dr. Benson’s opinion was equivocal; his testimony clearly did not indicate that Horn’s employment was a major contributing cause of his disability. Dr. Carlson, however — who practices medicine with Dr. Benson at the Orthopedic Institute in Sioux Falls — stated that he was unable to determine whether Dwain’s work-related activities or his pre-existing degenerative changes were the major contributing cause of Dwain’s impairment. However, he went on to state that if he were asked to apportion it, he would determine the pre-exist-ing condition to be fifty percent responsible and Dwain’s work-related activities to be fifty percent responsible for his condition.

[¶ 42.] A claimant does not need “to prove that the work injury was ‘the’ major contributing cause, only that it was ‘a’ major contributing cause, pursuant to SDCL 62-1-1(7).” Brown, 2002 SD 92, ¶ 23, 650 N.W.2d at 271 (describing the legislative history of SDCL 62-1-1(7)). Dr. Carlson’s opinion clearly indicated that Dwain’s work-related activities were fifty percent responsible for his impairment. No other cause could exceed this; no other cause could be greater than fifty percent responsible for Dwain’s condition. A cause which cannot be exceeded is a major contributing cause. Dr. Carlson’s opinion therefore established to a reasonable degree of medical probability that Dwain’s work-related activities were a major contributing cause of his current back impairment.

[¶ 43.] Dr. Carlson’s letter stated that there were two major contributing causes of Dwain’s back impairment—his pre-existing degenerative condition and his work-related activities—and these two major contributing causes were equally responsible for Dwain’s condition. Consequently, according to Dr. Carlson, Dwain’s work-related activity at S & P Construction was a major contributing cause of his disability. This is the plain meaning of his opinion expressed in the letter dated March 5, 2002. Any other interpretation of his opinion would place hyper-technical restrictions on workers’ compensation claimants seeking to recover for injuries sustained in the course of their employment, and would ignore the principle that workers’ compensation statutes are to be “ ‘liberally construed in favor of injured employees.’ ” Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 33, 606 N.W.2d 919, 925 (quoting Welch v. Automotive Co., 528 N.W.2d 406, 409 (S.D.1995)).

[¶ 44.] This Court has indicated that “[t]here are no ‘magic words’ needed to express an expert’s degree of medical certainty, and the test is only whether the expert’s words demonstrate that he or she was expressing an expert medical opinion.” Stormo v. Strong, 469 N.W.2d 816, 824 (S.D.1991). Dr. Carlson’s letter was clear and unequivocal. His opinion was stated in no uncertain terms: fifty percent of Dwain’s impairment could be blamed on his preexisting degenerative condition, and fifty percent could be blamed on his work-related activities. The opinion was expressed to a satisfactory degree of medical probability.

[¶ 45.] Dr. Carlson was a board-certified orthopedic surgeon with thirty years of experience in the field. He graduated from the University of Minnesota Medical School and the Mayo Graduate School of Medicine. He completed advanced training in adult spine surgery at the Institute for Low Back Care in Minneapolis. He, along with his associate, Dr. Benson, was one of Dwain’s treating physicians at the Orthopedic Institute for more than one year. He had personally examined Dwain on several occasions. Before rendering his opinion, he reviewed Dwain’s history “and all other data” available to him.

[¶ 46.] “This Court has approved an award of ‘compensation to claimants, even though they cannot prove any specific trauma, if they prove a history of injury to the body that occurs in the normal course of employment.’ ” Horn, 2006 SD 5, ¶ 16, 709 N.W.2d at 42. See also St. Luke’s Midland Regional v. Kennedy, 2002 SD 137, ¶ 13, 653 N.W.2d 880, 884-85 (“A preexisting medical condition or infirmity does not disqualify a claim under the ‘arising out of employment’ requirement if the employment aggravated, accelerated, or combined with the condition or infirmity to produce the disability for which compensation is sought.”). Furthermore, this Court stated in Schuck v. John Morrell & Co., 529 N.W.2d 894, 899 (S.D.1995)(quoting Caldwell, 489 N.W.2d at 358):

[A]n employee does not have to have an accident or experience any trauma to his person before a medical condition will qualify as a compensable injury. It is sufficient that the disability was brought on by strain or overexertion incident to the employment, though the exertion or strain need not be unusual or other than that occurring in the normal course of employment.

[¶ 47.] Dwain’s current impairment, although it cannot be traced to a single instance of trauma, is nonetheless compensable under South Dakota law. When Dwain started working for S & P Construction, he was an “exceptional worker” who could perform any work-related task. After five years of laboring as an employee of S & P Construction, his back had become so painful that he was forced to quit working. His employment-related activities at S & P Construction clearly “aggravated, accelerated, or combined with” his preexisting condition to produce his ultimate disability.

[¶ 48.] Under South Dakota law, insofar as a workers’ compensation claimant’s “pre-existing condition is eon-cerned[,] we must take the employee as we find him.” Kennedy, 2002 SD 137, ¶ 13, 653 N.W.2d at 884. “If a compensable event contributed to the final disability, recovery may not be denied because of the pre-existing condition, even though such condition was the immediate cause of the disability.” Id. (quoting Elmstrand v. G & G Rug & Furniture Company, 77 S.D. 152, 155, 87 N.W.2d 606, 608 (1958)). Dwain’s age and degenerative spinal condition may have made him more susceptible to a work-related injury while working for S & P Construction, but this does not alter the compensability of his claim.

[¶ 49.] Dwain met his burden of proving by a preponderance of the evidence that his work-related activities at S & P Construction were a major contributing cause of his disability.

ISSUE TWO

[¶ 50.] Did S & P Construction have actual knowledge of Dwain’s work-related injury?

[¶ 51.] Pursuant to SDCL 62-7-10, an employee who seeks workers’ compensation benefits for an injury must provide the employer with written notice of the injury within three days of its occurrence. Mudlin v. Hills Materials Co., 2005 SD 64, ¶ 21, 698 N.W.2d 67, 74. “However, when an employer [has] ‘actual knowledge’ of the injury,. the failure to provide notice does not bar the claim.” Id. Under South Dakota law, a workers’ compensation claimant bears the burden of establishing that the claimant either provided written notice of the injury or that the employer had actual knowledge of the injury. Id. Notification of an injury, either written or by way of actual knowledge, is “a condition precedent to compensation.” Westergren, 1996 SD 69, ¶ 17, 549 N.W.2d at 395.

[¶ 52.] “The purpose of the written notice requirement is to give the employer the opportunity to investigate the injury while the facts are accessible.” Id. ¶ 18. “The notice requirement protects the employer by assuring he is alerted to the possibility of a claim so that a prompt investigation can be performed.” Id.

[¶ 53.] “In determining actual knowledge, the employee must prove that the employer had ‘sufficient knowledge to indicate the possibility of a compensable injury.’ ” Shykes v. Rapid City Hilton Inn, 2000 SD 123, ¶ 36, 616 N.W.2d 493, 501 (quoting Streyle v. Steiner Corp., 345 N.W.2d 865, 866 (S.D.1984)). “The employee must also prove that the employer had sufficient knowledge that the injury was sustained as a result of [his] employment versus a pre-existing injury from a prior employment.” Id. (emphasis original). In other words, to satisfy the actual knowledge notice requirement, the employer: 1) must have sufficient knowledge of the possibility of a compensable injury, and 2) must have sufficient knowledge that the possible injury was related to employment with the employer.

[¶ 54.] Dwain did not give written notice. As a result, Dwain’s workers’ compensation claim could proceed only if he proved that his employers had actual knowledge of both his injury and its potential work-relatedness. Dwain’s employers were fully aware of his back condition. The only question was whether Dwairis employers had actual knowledge that Dwairis back condition may have been related to his employment at S & P Construction.

[¶ 55.] The hearing examiner did not address notice. Notice is the threshold issue in a workers’ compensation matter. The hearing examiner denied Dwain’s claim solely on the causation issue. The circuit court, however, concluded that Dwain’s employers did not have actual knowledge of the work-relatedness of Dwain’s injury sufficient to satisfy SDCL 62-7-10(1).

[¶ 56.] The circuit court’s ruling on this issue was based entirely on documentary evidence. Therefore, we review the ruling de novo. Moreover, this Court has held that the question of whether or not an injured employee has satisfied SDCL 62-7-10 is a mixed question of law and fact. Schuck, 529 N.W.2d at 897. Mixed questions of law and fact are also reviewed de novo. Id.

[¶ 57.] The circuit court’s decision on notice was erroneous for two reasons. First, the question of what knowledge Dwain’s employers possessed about his injury should have been addressed by the hearing examiner. In the absence of a finding by the hearing examiner, there was nothing for the circuit court to review. The hearing examiner had the benefit of observing both Stoebner and Permann testify live at the hearing. The hearing examiner was able to evaluate the credibility of the witnesses in a way the circuit court could not.

[¶ 58.] Second, the circuit court’s ruling on notice was not consistent with the facts of the case and the testimony of Stoebner and Permann themselves. When Dwain began work for S & P Construction, he was an “exceptional worker” who could perform any work-related task. After several years of the bending, stooping and heavy lifting required as an employee of S & P Construction, Dwain was forced to ask for lighter duty work. Ultimately, he could no longer do the work at all.

[¶ 59.] This Court has stated that, to satisfy the actual knowledge notice requirement, “ ‘[t]here must ... be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.’ ” Vaughn, 2000 SD 31, ¶ 33, 606 N.W.2d at 925 (emphasis added) (quoting Larson’s Workers’ Compensation Laws § 78.31(a)(2)). Dwain’s dramatic change in condition should have indicated to a “reasonably conscientious manager” that the case “might involve a potential compensation claim.”

[¶ 60.] The testimony from Stoebner and Permann did not support the circuit court’s decision on notice. Stoebner testified before the hearing examiner:

Q: But he was complaining more and more about his back condition getting worse towards the end; isn’t that true?
A: He was just saying that he wanted to do — you know, slow down. And I don’t know, he never really did complain. He just said he was doctoring more for it.
Q: But you knew that one of the reasons that he wanted to slow down is even though he wasn’t complaining, it was because it was hard work; you knew that?
A: Yeah. I suppose it was getting to the point that it was getting harder for him if his back was bothering him.
Q: And in fact, you knew at that time that it wasn’t a leap of logic that the type of hard work that he was performing day in and day out was playing a role in the progression of his back problems; you knew that, isn’t that true?
A: Well, since he told us, yeah. I mean that it would be a logical part of it since he was doctoring for it so that would be a logical part that he had back trouble, yeah.
Q: Well it was also—
A: That’s how I gathered my information from.
Q: And it was also logical because you were seeing him day in and day out. You were actually working alongside of him and watching the kind of work he was performing every day?
A: Uh-huh.
Q: Right?
A: Yeah, right.
Q: And it was hard work, wasn’t it?
A: Well, from medium to hard work, yes.
Q: I’m going to talk to you about this notice issue, and I guess I can just simply ask you. At the time that he left your employment, which I understand it to be May of 2001, you knew the reason he was leaving the employment was because of his back problems; you knew that, Mr. Stoebner, isn’t that true?
A: Because he was doctoring for them, yes.
Q: And you knew the doctor had told him that he should not continue to do this type of work; you knew that as well?
A: I never had any information telling me from the doctor that he could not do this work. It was just from him telling me.

Permann testified at the same hearing:

Q: And as the years went by, he started complaining more and more about aches and pains in his back; isn’t that true?
A: Yes. As we all did.
Q: Yeah. And at your deposition, I think we talked about that. You know, it’s pretty obvious to you that the work was taking a toll on Dwain. That wasn’t something that was a surprise to you at all, was it, Mr. Permann?
A: No.
Q: And in fact, you’ve personally been in this industry for years, and the heavy labor has taken a toll on you as well?
A: Yes.
Q: In the last couple of years that Dwain worked for you folks, you would hear Dwain say: I’ve got to think about doing something different or slowing down because my back is giving me problems. Do you remember him making statements like that?
A: Yes.
Q: And when he would make those statements to you, you took that that it was work-related, that it was the work that was causing him problems, correct?
A: Yes.
Q: And you understood that because you were watching him doing this heavy lifting, bending, and stooping day in and day out, correct?
A: Yes.
⅜ $ ⅜
Q: When Dwain left the employment of you and Mr. Stoebner, you knew at that time and you personally understood the reason he was leaving your employment was because of back problems related to work; isn’t that true?
A: Yes.

[¶ 61.] When Dwain terminated his employment with S & P Construction, he did so because his back condition had become so painful that he “couldn’t do the work anymore.” Dwain told his employers that his back pain was caused by “degenerated discs and wore [sic] out.” A “reasonably conscientious manager” would ask: worn out from what? If an employer is put on notice that an injury may be work related, the employer has actual knowledge sufficient to satisfy SDCL 62-7-10(1). See id. See also Westergren, 1996 SD 69, ¶ 20-21, 549 N.W.2d at 396.

[¶ 62.] In the absence of a finding from the hearing examiner, this Court would ordinarily be reluctant to rule on notice. However, in this case, the testimony of Stoebner and Permann themselves is inconsistent with the circuit court’s ruling and resolves the notice question. Stoeb-ner and Permann may not, in this appeal, “ ‘assert a better version of the facts than [their] prior testimony and ‘cannot now claim a material issue of fact which assumes a conclusion contrary to [their] own testimony.’ ’ ” Clausen v. Northern Plains Recycling, 2003 SD 63, ¶ 18, 663 N.W.2d 685, 690 (quoting Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 16, 557 N.W.2d 764, 768) (other citations omitted). Stoebner and Permann admitted that they both had actual knowledge of Dwain’s injury and its potential relatedness to his work at S & P Construction.

[¶ 63.] Consequently, Dwain satisfied the notice threshold. Dwain proved that his employers had actual knowledge of a potential injury and that the injury may have been related to his work at S & P Construction. The circuit court’s determination to the contrary is reversed.

CONCLUSION

[¶ 64.] When Dwain started working for S & P Construction in 1994 he was in excellent health and could perform any work-related task. His employers described him as an “exceptional worker” and a “very good employee” who “worked very hard.” By the late 1990s, however, the bending, stooping and heavy lifting required of him as an employee of S & P Construction had injured his back to the extent that he was forced to request lighter duty work and a shortened work-week. Eventually, his back condition became so painful that he had no choice but to resign from S & P Construction.

[¶65.] Dr. Carlson, one of Dwain’s treating physicians, stated that there were two major contributing causes for his back impairment. According to Dr. Carlson, Dwain’s pre-existing degenerative spinal condition and his work-related activities were each fifty percent to blame for his ultimate disability. When a cause is determined to be fifty percent responsible for a disability, no other cause can exceed it. A cause that cannot be exceeded is a major contributing cause of a disability. Therefore, Dwain’s work-related activities were a major contributing cause of his disability.

[¶ 66.] Dr. Carlson’s opinion was stated to a sufficient degree of medical probability. The hearing examiner and the circuit court are reversed on causation. Dwain satisfied his burden of proving that injuries sustained in the course of his employment with S & P Construction were a major contributing cause of his ultimate disability.

[¶ 67.] Dwain also satisfied his burden of proving that his employers had actual knowledge of his injury and its potential work-relatedness.

[¶ 68.] The matter is reversed and remanded to Department for a determination on permanent and total disability under the odd-lot doctrine.

[¶ 69.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, concur.

[¶ 70.] ZINTER, Justice, concurs in part and dissents in part.

[¶ 71.] BASTIAN, Circuit Judge, dissents.

[¶ 72.] GORS, Circuit Judge, sitting for SABERS, Justice, disqualified.

[¶ 73.] BASTIAN, Circuit Judge, sitting for KONENKAMP, Justice, disqualified.

ZINTER, Justice

(concurring in part and dissenting in part).

[¶ 74.] I join the opinion of the Court on the issue of causation. However, I respectfully dissent on the issue of notice. In my view, the notice issue should be remanded because there is conflicting evidence concerning Employer’s actual knowledge of the work-related nature of the disability. Moreover, although the administrative agency tried this factual dispute concerning notice, it has not resolved the conflicting evidence. Therefore, even though this Court identifies evidence that employer may have admitted actual notice, the dispute was not resolved below and we should not resolve this conflict involving live testimony. We should remand for the entry of findings of fact and conclusions of law on the issue of actual notice.

[¶ 75.] It bears repeating that in this type of appeal, we are reviewing the findings of fact and conclusions of law of the administrative agency rather than the findings and conclusions of the circuit court. Therefore, “ ‘[t]he Supreme Court [reviews] the administrative agency’s decision ... unaided by any presumption that the circuit court’s decision was correct.’ ” Kurtz v. SCI, 1998 SD 37, ¶ 10, 576 N.W.2d 878, 882 (quoting Zoss v. United Bldg. Ctrs., Inc., 1997 SD 93, ¶6, 566 N.W.2d 840, 843).

[¶ 76.] In this case the issue of notice was fully litigated at the administrative hearing, but the hearing examiner expressly declined to decide the issue because she disposed of the case on the issue of causation. This Court, however, decides the notice issue on appellate review by focusing solely on alleged concessions of the employer. However, live testimony was taken on the notice issue and the only findings adopted by the hearing examiner suggest that Employers did not have actual notice. For example, in Findings 48-53 the hearing examiner found:

(1) that Employer received a report of first injury on May 20, 2002;
(2) that May 20, 2002, was the first time Employer became aware that Claimant was claiming to have sustained a work-related injury;
(3) that Mr. Stoebner was surprised when he received Claimant’s first report of injury;
(4) that Employer had posted a notice in the workplace notifying employees that they were to promptly report any injuries they received while working; and
(5) that neither Claimant nor any doctor ever informed either Permann or Stoeb-ner that Claimant had been injured while working.

Ultimately, the hearing examiner did not adopt findings or conclusions resolving the conflict between these findings and the testimony of the two employers relied upon by this Court. That conflict remains unresolved by any fact finder.

[¶ 77.] Because the notice issue should be decided after a resolution of this conflicting live testimony, I would remand the matter for dispositive findings and conclusions. I would also remand because the findings that were adopted by the hearing examiner suggest no actual notice, this Court decides the issue on other testimony not even acknowledged by the hearing examiner, and the hearing examiner has yet to actually decide the issue. Under these circumstances a remand is required because, as we have often noted, “the fact finder ... had the advantage of hearing testimony of witnesses and could directly judge their credibility. As a reviewing court, neither the circuit court nor this [C]ourt should attempt to assume such a role.” Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181.

BASTIAN, Circuit Judge

(dissenting).

[¶ 78.] I respectfully dissent. The appellant’s causation evidence is based solely on a one-paragraph letter of Dr. Carlson set forth at ¶ 36. Dr. Carlson admits “it is not possible for me to determine which of the patient’s work-related activities or the patient’s pre-existing degenerative changes are the major contributing cause of his disability impairment and the need for medical treatment.” He nonetheless concludes, “If we are asked in the future to apportion this, we would give it a 50% to the pre-existing degenerative problems and 50% to the work related issues.”

[¶ 79.] I find that Dr. Carlson’s allusion to a future determination is too indefinite and his reference to “the work related issues” is too nebulous to have established causation to a reasonable medical probability. Enger v. FMC, 1997 SD 70, ¶ 18, 565 N.W.2d 79, 85 (when the medical evidence is not conclusive, the claimant has not met the burden of showing causation by a preponderance of the evidence. Causation must be established to a reasonable medical probability, not just a possibility.)

[¶ 80.] More importantly, there is no affidavit, deposition or live testimony by the doctor. The one-paragraph letter was signature-stamped.

[¶ 81.] This Court has “consistently required expert medical testimony in establishing causation for workers’ compensation purposes.” Enger, supra, (emphasis supplied). In Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 10, 558 N.W.2d 76, 78, this Court held that “[ejxpert witness testimony must be used to establish the causal connection between one’s employment and subsequent injury where ‘the field is one in which laymen are not qualified to express an opinion.’ ” Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992); Howe v. Farmers Coop. Creamery, 81 S.D. 207, 212, 132 N.W.2d 844, 846 (1965).

A [worker’s] compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment. As noted above, where the relationship between the work and the injury is not clear, medical expert testimony is required to establish the causal connection.

Hanten, 1997 SD 3, ¶ 18, 558 N.W.2d at 78(internal citations and quotations omitted).

[¶ 82.] This Court has frequently held that the “testimony of professionals is crucial” in establishing the causal relationship. Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶ 21, 653 N.W.2d 247, 252; Day, 490 N.W.2d at 724; Lawler v. Windmill Restaurant, 435 N.W.2d 708, 710 (S.D.1989); Wold v. Meilman Food Indus., Inc., 269 N.W.2d 112, 115 (S.D.1978).

[¶ 83.] In Westergren v. Baptist Hospital, 1996 SD 69, ¶ 31, 549 N.W.2d 390, 398, this Court held:

By stating that “the testimony of professionals is crucial in establishing this causal relationship” we acknowledged the lack of medical training by lawyers, hearing examiners, and courts to interpret these records.... By not deposing these professionals or having them testify at hearing, the parties are likewise limited in the information that might otherwise be available to them.

See also Deuschle v. Bak Constr. Co., 443 N.W.2d 5, 6 (S.D.1989) (to establish the causal relationship ... a finding “must rest on the testimony of professionals”.)

[¶ 84.] I find the majority’s reliance on Stormo v. Strong, 469 N.W.2d 816 (S.D. 1991) to be unpersuasive. I agree there “are no ‘magic words’ needed to express an expert’s degree of medical certainty, and the test is only whether the expert’s words demonstrate that he or she was expressing an expert medical opinion.” Stormo, 469 N.W.2d at 824 (citing Drexler v. All Amer. Life & Cas. Co., 72 Wis.2d 420, 432, 241 N.W.2d 401, 408 (1976)). In Stormo and in Drexler, however, unlike this case, the Court was able to evaluate the sworn testimony of the medical expert. Stormo, 469 N.W.2d at 824; Drexler, 72 Wis.2d at 425, 241 N.W.2d at 403.

[¶ 85.] While the worker’s compensation act is to be liberally construed in favor of the claimant, this rule applies to the law and not to the evidence offered to support the claim. Hanten, 1997 SD 3, ¶ 10, 558 N.W.2d at 78; Wold, 269 N.W.2d at 116; and Podio v. American Colloid, 83 S.D. 528, 534, 162 N.W.2d 385, 388 (1968).

[¶ 86.] The appellant’s evidence on causation, resting on an imprecise one-paragraph letter that the doctor did not sign and may not have reviewed after dictating, falls well short of any standard that this Court has previously established in worker’s compensation cases. There is no expert medical opinion in any reliable form that establishes causation to a reasonable medical probability.

[¶ 87.] In addition, I join the dissent of Justice Zinter.

      . 1. The following testimony from Permann was elicited during the proceeding before the hearing examiner:
      Q: I guess the point I’m trying to make is in 1994 when he went to work for you folks, from your personal observation of him, he was having no problems doing any of the work that you folks had him doing.
      A: No.
      Q: And then, three, four years into the job of doing this medium to heavy labor, manual labor, he started having more and more complaints about back problems; isn't that a fair statement?
      A: Yes.

        Q: And he would make those complaints to you personally, and you would actually accommodate him in the type of work he was performing; isn't that fair?
      A: Toward the end, yes.

      . Furthermore, Dr. Carlson's letter is addressed to the appellant's attorney but the attorney's letter of inquiry is not part of the record. Thus, we have Dr. Carlson's answer but are left to speculate as to the question posed.


author: ZINTER, Justice.

text:
    2006 SD 101
    Tim BURCH and Linda Burch, Plaintiffs and Appellees, v. Stanley BRICKER and Diana Bricker, Defendants and Appellants, and Ben N. Garman and Lori L. Garman, Defendants and Appellants.
    No. 23907.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2006.
    Decided Nov. 15, 2006.

      Wesley W. Buckmaster, Buckmaster Law Offices, P.C., Belle Fourche, South Dakota, Attorneys for plaintiffs and appel-lees.
    Brad A. Schreiber, Schreiber Law Office, Brooke K. Steele, Belle Fourche, South Dakota, Attorneys for defendants and appellants.
   ZINTER, Justice.

[¶ 1.] Burchs leased cattle grazing land from Brickers. Burchs claimed a rent reduction due to a drought. The parties agreed that the lease authorized the reduction, but there was a dispute concerning the method of calculation. Over a period of time, both sides filed a number of motions for partial summary judgment asking the circuit court to decide the issues piecemeal as a matter of law. The circuit court granted summary judgments in favor of Burchs on the calculation and amount of the reduction. The court denied summary judgments on Brickers’ affirmative defenses of laches and unjust enrichment. Brickers appeal. We affirm.

Facts and Procedural History

[¶ 2.] Burchs leased the grazing land from Brickers from 1997 through 2000. They entered into a second lease covering 2001 through 2006. The annual rent was $40,000. In 2004, Garmans purchased the land subject to the lease. The purchase agreement required Brickers to indemnify Garmans for some of Burchs’ claims. Both Brickers and Garmans are hereinafter referred to as “Brickers,” unless the context requires separate identification.

[¶ 3.] The two provisions of the lease relating to rent reduction provided:

§ VIII: It is agreed to by and between the parties that the leased premises has a carrying capacity of 300 cow/calf pairs. § IV: ..., should any of the leased premises be damaged or destroyed by any casualty of weather, fire or event not caused by the negligent or intentional conduct of Lessees, rent shall be adjusted according to the acreage damaged or destroyed for that year.

[¶ 4.] Burchs sued for a rent reduction under these provisions. Bricker admitted that § IV allowed a rent adjustment for damage due to drought, but objected to the consideration of cattle “carrying capacity” under § VIII in measuring the reduction. The circuit court granted Burchs’ motion for summary judgment allowing a rent reduction measured by the loss of forage and the resulting loss of carrying capacity of the property. The circuit court denied Brickers’ defensive motions for summary judgment asserting laches and unjust enrichment. The circuit court ultimately granted Burchs judgment in the amount of $80,212.00 plus interest. Brick-ers raise four issues on appeal. We restate them as follows:

Issues
1. Whether the circuit court erred as a matter of law in its method of calculating the rent reduction.
2. Whether the circuit court erred in disallowing the defense of laches.
3. Whether the circuit court erred in disallowing the defense of unjust enrichment.
4. Whether there was a material issue of disputed fact concerning offsets that precluded summary judgment.

Standard of Review

[¶ 5.] In reviewing a motion for summary judgment:

[We] must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.... The evidence must be viewed most favorably to the non-moving party.... The non-moving party, however, must present specific facts that a genuine, material issue for trial exists.

Garrett v. BankWest, Inc., 459 N.W.2d 833, 836-837 (S.D.1990) (citations omitted).

Decision

1) Method of Calculating the Rent Reduction

[¶ 6.] Burchs’ calculation of rent reduction, accepted by the circuit court, was premised on § VIII’s language indicating that this grazing lease contemplated a “carrying capacity of 300 eow/calf pairs.” Undisputed expert testimony established that “carrying capacity is the amount of head of livestock that can harvest the forage on a given piece of real estate without doing damage to either plant density or the condition of the property.” Because the drought reduced the forage and resulting carrying capacity of the land, the rent reduction was calculated on the reduced number of cows/calf pairs, known as animal units (AUs), that could graze the premises during the drought. Ultimately, the percentage of reduced AUs was used to reduce the rent proportionately.

[¶ 7.] Based on this methodology, there was a 46.65% loss of carrying capacity in 2001, a 62.68% loss in 2002, and a 53.87% loss in 2003. A similar method was apparently used in 2004. The annual rent was reduced by these percentages to calculate the rent reduction for each year. The $80,212.00 judgment awarded to Burchs is the rounded sum of these reductions.

[¶ 8.] On appeal, Brickers’ principal argument is that the lost carrying capacity methodology was an improper basis for calculating the reduction. They claim that § IV required that the reduction be calculated on some formula that measured the specific number of acres that were unavailable because of drought.

[¶ 9.] Although Brickers also argue that summary judgment was precluded by material issues of disputed fact, they concede that this issue is really a question of law. Brickers have identified no fact in dispute with respect to the circuit court’s calculations. Brickers’ brief also unequivocally states: “The lower court erred as a matter of law in interpreting the contract to require that damages be calculated based on ‘carrying capacity.’ For this reason, the trial court must be reversed on this issue.” Therefore, there are no material issues of disputed fact that preclude summary judgment on the method of calculating the reduction.

[¶ 10.] As Brickers concede, the rent reduction methodology involves an interpretation of the contract. Interpretation of a contract is a question of law, which we review de novo. See A-G-E Corporation v. State, 2006 SD 66, ¶ 15, 719 N.W.2d 780, 786. The calculation of damages under the lease is analogous to the calculation of damages generally. “ ‘Proof of damages requires a reasonable relationship between the method used to calculate damages and the amount claimed.’ ” Bunkers v. Jacobson, 2002 SD 135, ¶ 40, 653 N.W.2d 732, 743 (quoting McKie v. Huntley, 2000 SD 160, ¶ 18, 620 N.W.2d 599, 603 (citation omitted)). “In applying this rule, a reasonable certainty test is employed. ‘Reasonable certainty requires proof of a rational basis for measuring loss,’ without allowing any room for speculation.” Id. (citations omitted).

[¶ 11-.] In this case, the circuit court’s methodology identified the loss of forage and resulting loss of carrying capacity and compared that loss to the carrying capacity contemplated in a normal year. Based on the lease’s express provision specifying a carrying capacity of 300 cow/calf pairs in a normal year, there was a reasonable relationship between the method utilized and the rent reduction claimed. Moreover, the method was precise and easily calculable.

[¶ 12.] Brickers essentially concede the point. Their brief acknowledges that there is more than one reasonable basis on which to calculate this type of loss:

There are at least two alternative methods for calculating the alleged loss. As previously stated herein the preferred method ... is a determination of the lost acreage due to drought.... The second preferred method would be to utilize a method of calculation which has generally been accepted for calculating such losses.

The circuit court’s methodology was generally accepted in the agricultural community. Brickers raise no dispute of fact on this point. Expert testimony indicated that: “Well, we do this in the normal course of our business. Any time we appraise a ranch, we evaluate the forage production. We convert that to animal units and it becomes a part of our value estimates. One of the three approaches we look at when we estimate value....” The circuit court’s methodology was also consistent with the federal government’s measurement of relief for drought losses. Burch testified that when drought relief was computed, “[i]t was based on my animal units.”

[¶ 13.] Ultimately, Brickers simply “prefer” an “alternative” method of calculation. However, they failed to demonstrate that, as a matter of law, the loss of forage and carrying capacity method was an irrational basis on which to calculate the loss. After all, this was a grazing lease and there was no evidence that the drought only damaged a certain number of the acres leased. Furthermore, Stanley Bricker’s own testimony refutes his claim that the reduction may only be measured by “the number of acres lost due to drought,” and that the carrying capacity was only a “size determination” of the property. When asked to explain what “size determination” meant, if it was different than carrying capacity, Bricker replied “I don’t know that I can.”

[¶ 14.] Brickers finally claim that the circuit court’s method of calculating the reduction was unreasonable because it was based on the annual rent and “if the lease price was [increased], then the alleged loss would go up.” Brickers contend that such a methodology would not be based on Burchs’ actual loss because it would be based on the cost of the lease rather than the number of damaged or destroyed acres. We find this argument unavailing. A higher lease price is indicative of more productive land. If Burchs had paid higher rent for more productive land, logic and economics dictate that they would have suffered a greater loss.

2) Laches

[¶ 15.] To support a determination that the affirmative defense of laches bars Burchs’ action:

[It] must be found that, (1) [Burchs] had full knowledge of the facts upon which the action is based, (2) regardless of this knowledge, [Burchs] engaged in an unreasonable delay before commencing this suit, and (3) that allowing [Burchs] to maintain the action would prejudice [Brickers].

Brookside Townhouse Ass’n v. Clarín, 2004 SD 79, ¶ 32, 682 N.W.2d 762, 771. However, “[l]aches does not depend upon passage of time alone; plaintiff must be chargeable with lack of diligence in failing to proceed more promptly.” Conway v. Conway, 487 N.W.2d 21, 25 (S.D.1992) (citing Golden v. Oahe Enterprises, Inc., 90 S.D. 263, 277-278, 240 N.W.2d 102, 110 (1976)). See also F.D.I.C. v. Nordbrock, 102 F.3d 335, 340 (8th Cir.1996) (affirming a summary judgment denying the defense of laches); Brown-Mitchell v. Kansas City Power & Light Co., 267 F.3d 825, 827 (8th Cir.2001) (affirming a summary judgment granting the defense of laches). Thus, “ ‘mere delay, short of the statute of limitations, will not estop a party from asserting his right ..., unless he has been guilty of some act, declaration, or statement that has, in some manner, misled the other party to his prejudice.’ ” City of Sioux Falls v. Miller, 492 N.W.2d 116, 120 (S.D. 1992) (quoting Faulk v. Missouri River and N.W. Ry. Co., 28 S.D. 1, 12, 132 N.W. 233, 237 (1911)).

[¶ 16.] Briekers claim they were misled because Burchs were not diligent in bringing this suit and there is no evidence that a formal rent adjustment was requested during the years 1998-2002. Briekers claim prejudice because they cannot now view the condition of the land as it existed, or observe the number of cattle that were actually able to graze the premises during the drought years. They argue that Burchs’ delay in bringing this suit kept them from reasonably evaluating the loss actually suffered.

[¶ 17.] However, there is no evidence that Burchs acted without due diligence in bringing this suit. Although Briekers claim that Burchs failed to promptly assert this claim, there is no dispute that Brick-ers lived on this property during the time in question. Therefore, they were in the same position as Burchs to view the effect of the drought on the available forage and number of cattle that the land could sustain. As the circuit court observed: “the [Briekers] had the same opportunity as the [Burchs] to record the drought conditions that existed during the lease.” For these reasons, and because there is no dispute that rent adjustments were at least informally discussed as early as 2001, Briekers’ defense of laches was insufficient as a matter of law.

3) Unjust Enrichment

[¶ 18.] Briekers contend that Burchs were unjustly enriched through a rent reduction together with the circuit court’s failure to grant an offset for Burchs’ federal government Non-Insured Crop Assistance Program (NAP) drought relief payments. That contention is without merit. “Quantum meruit is still used today as an equitable remedy to provide restitution for unjust enrichment.” Black’s Law Dictionary 1255 (7th ed. 1999). However, this remedy is unavailable when the rights of the parties are fixed by the terms of a written contract: in this case, the lease.

[Q]uantum meruit does not provide a basis for recovery when a valid express contract exists between the parties, fixing the rights of each. There is no question but what, where there is a valid express contract existing between parties in relation to a transaction fully fixing the rights of each, there is no room for an implied promise, or [claim] on quantum meruit.

Mooney’s, Inc. v. South Dakota Dept. of Tramp., 482 N.W.2d 43, 47 (S.D.1992) (quoting Thurston v. Cedric Sanders Co., 80 S.D. 426, 125 N.W.2d 496, 498 (1963). Because this lease contained an express provision for calculating the rent reduction, the theory of unjust enrichment provides no basis for additional adjustments.

3) Offset of Damages

[¶ 19.] Brickers claimed three offsets. However, the first claimed offset for the NAP payments is unavailable because, as discussed above, the claim for unjust enrichment fails. The second claim (a $5,000 reduction previously paid) was conceded by Burchs and does not require our consideration. The third is based on the rent reduction for 2004, which was $14,931.84. This reduction related to the period of time after Garmans had purchased the property. Brickers argue that the 2004 reduction should be subtracted from the judgment against them and awarded against Garmans.

[¶20.] However, Brickers cite no authority other than a reference to Burch’s Third Amended Complaint. That complaint asked for the entire amount from the Brickers, or in the alternative, for the 2004 amount from Garmans. This reference is not authority requiring separate judgments. “ ‘The failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and [this] issue is ... .waived.’ ” Chapman v. Chapman, 2006 SD 36, ¶ 31, 713 N.W.2d 572, 580 (quoting State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599) (citations omitted).

[¶ 21.] Even if we were to reach the issue, however, the circuit court did not abuse its discretion. The 2004 loss involves an indemnity claim between Brick-ers and Garmans, and that claim is controlled by their indemnity agreement. Because Burchs are not a party to that agreement, we see no abuse of discretion in not involving them in a dispute between the landlords.

[¶ 22.] Affirmed.

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

      . The expert defined an AU as: ”[a]n animal unit ... it’s the animal .... [it] is defined as a thousand-pound cow with or without a calf up to six months old.”
      The expert defined an AUM and carrying capacity as:
      [t]he amount of forage it takes to sustain one AU for a month ... Essentially, the forage production is expressed as AUMs. And once you have that number, you can divide it by 12 to estimate the total carrying capacity or the total number of head that that amount of forage will sustain.

      . There is also statutory support for carrying capacity as a measurement. SDCL 10-6-33.1(1) enumerates the " 'capacity of the land to produce agricultural products ....' as one factor to be considered in determining value of agricultural land.” SDCL 10-6-33.2 further provides: "The capacity of agricultural land to produce agricultural products shall be based on ... the average acres per animal unit for grazing land.”

      . Brickers claim that Burchs' complaint is inconsistent by requesting damages for “loss of leased acreage due to drought,” but calculating damages based on carrying capacity. Because Stanley Bricker was unable to explain any relevant difference between the two, this claim is without merit.

      . Burchs also contend that Briekers’ Notice of Appeal was not timely filed on this issue and on the issue of unjust enrichment. However, denial of a motion for summary judgment is generally not considered a final judgment when "it does not finally and completely adjudicate all issues of facts and law on the motion.” Action Carrier, Inc. v. United Nat. Ins. Co., 2005 SD 57, ¶ 25, 697 N.W.2d 387, 393 (citation omitted). Because these rulings were denials of motions for partial summary judgment, they were not appealable under SDCL 15-26A-3. Id. ¶ 24. Instead, they were reviewable on appeal of the final judgment.

      . Brickers also fail to acknowledge Burchs' retroactive ineligibility for the NAP payments. Brickers offered a letter from the County Director of the Farm Service Agency, stating that if Burchs did not carry the full risk of loss on the grazing land involved, their eligibility for the NAP payments must be reevaluated. Brickers have not identified a material issue of disputed fact concerning the contents of this letter.

      . Brickers paid Burchs a $5,000 reduction, which Burchs acknowledge. The amount was not subtracted from the judgment through inadvertence. Burchs agreed to file a partial satisfaction of judgment in that amount, and it appears that the satisfaction has been filed.