text:
    2006 SD 64
    Dennis F. WISNER, Plaintiff and Appellee, v. Ethel M. PAVLIN, Defendant and Appellant, and CorTrust Bank, NA., Defendant.
    No. 23904.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2006.
    Decided July 19, 2006.

      Charles L. Dorothy of Dorothy Law Firm, P.C., Sioux Falls, South Dakota, Attorney for plaintiff and appellee.
    Michael A. Hauck of Bangs, MeCullen, Butler, Foye & Simmons, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Ethel Pavlin (Ethel) contests a court ordered partition sale of real property which she owns as a tenant in common with Dennis Wisner (Dennis). Ethel claims her homestead interest in the property prevents the partition. The trial court denied her claim and granted the partition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] In 1999, Ethel purchased a home in Sioux Falls with Francis Wisner (Francis). Although the two were never married, Francis and Ethel held the property as joint tenants with right of survivorship. The two resided at the home together and maintained it as their principal residence. In 2002, Francis deeded his one-half undivided interest in the home to his son Dennis via quit claim deed for no consideration. Ethel did not consent to the conveyance nor sign the quit claim deed.

[¶ 3.] Francis died on September 24, 2004. Thereafter, Dennis brought this action requesting that the court order a partition sale of the property under his right as a cotenant. In response, Ethel asserted that her homestead interest precluded a partition sale. Ethel also counterclaimed against Dennis and sought a declaration that the 2002 quit claim deed was invalid since she did not join in the conveyance.

[¶ 4.] The parties stipulated to the facts as set forth above and submitted the case for the trial court’s consideration. The court concluded that Francis validly transferred his interest in the property to Dennis via quit claim deed. The court agreed that Ethel has a homestead interest in the property, but the court concluded that the homestead interest did not prevent partition. Ethel appeals from the trial court’s decision and presents two issues for our consideration:

ISSUES
1. Whether the trial court erred in finding that Francis validly transferred his interest to Dennis via quit claim deed, even though Ethel, as joint tenant and homestead claimant, did not consent to or join in that conveyance and did not sign the deed.
2. Whether the trial court erred in ordering a partition sale of the property in which Ethel had a homestead interest which preceded her coten-ancy with Dennis.

DECISION

[¶ 5.] Before addressing the issues presented by Ethel, we set forth the general principles applicable to homestead law in South Dakota. Article XXI, Section 4 of the South Dakota Constitution provides, “The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families.... ” Under the law, a homestead interest is not “an estate in land, but is a mere privilege granted by the Legislature.” In re Estate of Mathison, 468 N.W.2d 400, 403 (S.D.1991) (quoting In re Clouse’s Estate, 63 S.D. 147, 150-51, 257 N.W. 106, 108 (1934)) (emphasis added). As we explained:

The right of homestead is not, under the laws of this state, an estate in land, but is a mere privilege granted by the Legislature in fulfilling the constitutional mandate of section 4, art. 21, and consists of the right of occupancy given to the surviving spouse and minor children and does not pass by succession, showing clearly that when the need for protection for the family ceases, then there is no longer any reason for the homestead. The homestead exemption is therefore temporary and exists only so long as the conditions prevail under which it was allowed by the homestead law.

Id. (quoting Clouse’s Estate, 63 S.D. at 150-51, 257 N.W. at 108). Therefore, the homestead interest “depends entirely upon the constitutional and statutory provisions.” State ex rel Bottum v. Knudtson, 65 S.D. 547, 276 N.W. 150, 151 (1937). The purpose of homestead legislation is to “protect the security of the home and family against the claims of creditors.” In re Davis, 2004 SD 70, ¶ 4, 681 N.W.2d 452, 453; see also 40 AmJur2d Homestead § 4 (1999) (stating that “the primary purpose of homestead provisions is to place the property designated as a homestead out of reach of creditors while it is occupied as a home or, as otherwise stated, to secure to a debtor and his family necessary shelter from creditors”). This Court jealously guards the homestead exemptions guaranteed in both our constitution and statutes. Davis, 2004 SD 70, ¶4, 681 N.W.2d at 453. With those principles in mind, we turn to Ethel’s issues on appeal.

Validity of Deed

[¶ 6.] We first consider whether the quit claim deed by which Francis transferred his interest to Dennis was valid. The parties agree that Francis and Ethel held the property as joint tenants with right of survivorship, and they acknowledge that if effective, the transfer of Francis’ interest to Dennis via quit claim deed converted the joint tenancy between Francis and Ethel into a tenancy in common between Dennis and Ethel. Therefore, the issue here is whether Ethel’s homestead interest in the property required her consent for the conveyance to be valid. Ethel claims that SDCL 43-31-17 mandates such a requirement. Therefore, this issue presents a question of law which we review de novo. Estate of Howe, 2004 SD 118, ¶ 16, 689 N.W.2d 22, 27 (“[Cjonstruing a statute entails answering a question of law; thus, we review the trial court’s statutory interpretation de novo.”).

[¶ 7.] Ethel relies on SDCL 43-31-17 which restricts conveyance of a homestead without a spouse’s concurrence. In relevant part, the statute provides:

A conveyance or encumbrance of a homestead by its owner, if married and both husband and wife are residents of this state, is valid if both husband and wife concur in and sign or execute such conveyance or encumbrance either by joint instrument or by separate instruments.

SDCL 43-31-17. Ethel argues that this statute, in combination with her homestead interest, prevented Francis from conveying his interest in the property because Ethel did not know of, consent to, or sign the deed. Ethel asks us to parse the statute and recognize that because it applies to “[a] conveyance or encumbrance of a homestead by its ovmer,” the consent of any and all record owners of property is required for the conveyance of a homestead to be valid. According to Ethel, the language of SDCL 43-31-17 “should be construed, based on the underlying policy of South Dakota’s homestead laws, as prohibiting such transfers without the other homestead owner’s consent and joinder.”

[¶ 8.] To construe SDCL 43-31-17 according to Ethel’s argument would be to ignore its plain meaning. The language of the statute clearly applies only to situations in which the homestead of a husband and wife is conveyed. The statute modifies “owner” with “married,” and it further requires that both husband and wife be residents of this state. Thus, we cannot extend the consent requirements of SDCL 43-31-17 beyond what the Legislature has decreed, as evidenced by the language of the statute.

[¶ 9.] Ethel argues that the Colorado case of Knoche v. Morgan, 664 P.2d 258 (Colo.Ct.App.1983), supports her interpretation of SDCL 43-31-17. In Knoche, the court stated that a statute similar to SDCL 43-31-17 “renders void any attempt by one of two joint tenants of properly homesteaded property to destroy the joint tenancy by unilateral conveyance.” Id. at 259. For that proposition, Knoche cited another Colorado case, Wise v. Thomas, 117 Colo. 376, 188 P.2d 444 (1947). Ethel’s reliance on Knoche is flawed for one reason: she and Francis were never married. In both Knoche and Wise, the joint tenants were husband and wife. More importantly, like SDCL 43-31-17, the Colorado statute upon which Knoche and Wise rely explicitly applies only to spouses. Therefore, the language of Knoche suggesting that the statutory mandate applies beyond the spousal relationship is purely dicta, and we decline to rely upon it.

[¶ 10.] As we have stated, “ ‘The homestead right depends entirely upon constitutional and statutory provisions that create them.’ ” Beck v. Lapsley, 1999 SD 49, ¶ 7, 593 N.W.2d 410, 413 (citations omitted); see also 40 AmJur2d Homestead § 3 (“[h]omestead law is purely statutory”). Therefore, we are confined to the language of our statutes to determine the extent of those rights. As set forth above, the homestead interest is a privilege granted by the Legislature which wholly depends on constitutional and statutory provisions. Therefore, when construing SDCL 43-31-17, we must constrain ourselves to the dictates of the language. In light of the clarity of the statute’s language, we cannot say that its consent requirement extends beyond the conveyance of a homestead by a married person. The trial court’s conclusion of law in that regard was correct.

Propriety of Partition

[¶ 11.] The second issue presented by Ethel is whether her homestead interest precludes a partition sale of the property. The parties acknowledge that partition is appropriate for tenancies in common. They disagree, however, as to the effect of Ethel’s homestead interest on the right of partition. Like the first issue, this issue presents a question of law which we review de novo.

[¶ 12.] Ethel first argues that the partition sale violates her rights under the South Dakota Constitution to be free from a forced sale of her homestead. See SD Const art. XXI, § 4. Ethel points to SDCL 43-31-1, the statute which implements the relevant constitutional provision. SDCL 43-31-1 states:

The homestead of every family, resident in this state, as hereinafter defined, so long as it continues to possess the character of a homestead is exempt from judicial sale, from judgment lien, and from all mesne or final process from any court, to the extent and as provided by statute.

Ethel argues that a partition sale constitutes a “judicial sale” under SDCL 43-31-1 and therefore violates the South Dakota Constitution. The relevant constitutional provision, however, states that “[t]he right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families.... ” SD Const art. XXI, § 4 (emphasis added). In this case, we are not presented with the competing interests of a debtor and a creditor. Because Ethel does not assert her homestead interest against a creditor, the policy of homestead protection established by our constitution and statutes is not implicated. See In re Davis, 2004 SD 70, ¶4, 681 N.W.2d at 454 (recognizing that the purpose of homestead legislation is to protect “the security of the home and family against the claims of creditors ”). Therefore, we need not determine whether a partition sale constitutes a “forced sale” or a “judicial sale,” and we proceed to determine whether Ethel may assert her homestead interest against a cotenant.

[¶ 13.] None of our previous decisions directly address the effect of one coten-ant’s homestead interest on another coten-ant’s right of partition outside the context of a marriage. In Wells v. Sweeney, 16 S.D. 489, 94 N.W. 394 (1903), however, the Court considered an action for partition of a spousal homestead. In Wells, a husband and wife established a homestead on a quarter section of land. Id. at 394. When the wife died, the husband and two children received equal interests in the property, but only the husband continued to reside on the land. Id. He then sought to partition the property, but the Court refused. Id. at 395. The Court noted that the relevant statute provided:

Upon the death of either husband or wife the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age.

Id. (emphasis added). Because the statute granted a surviving spouse a homestead interest in the entire homestead, the Court reasoned that “during the lifetime of the surviving husband, wife, or any minor child, the homestead cannot be partitioned among the heirs at law, except by consent of all the parties interested in the same.” Id. According to the Court,

“If the heh-s are not entitled to a partition of the homestead during the lifetime of the surviving husband or wife or minor children who actually occupy the same as a homestead, it would seem to necessarily follow that such survivor would not be entitled to a partition of the same so long as he or she occupied the same as a homestead.”

Id.

[¶ 14.] Subsequent to Wells, the case of Johnson v. Hendrickson considered an action for partition among cotenants, one of which held a homestead interest in the subject property. 71 S.D. at 394, 24 N.W.2d 914 (1946). In that case, the defendant cotenant did not assert his homestead interest to completely avoid partition; rather, he argued that his homestead interest required partition-in-kind, rather than partition by sale. Id. at 401, 24 N.W.2d at 918. When considering that argument, we stated:

The rule as stated in Thorn v. Thorn, 14 Iowa 49, [1862 WL 264 (1862)], and approved in Smith v. Wright, 195 Minn. 589, 263 N.W. 903 [ (1935) ], is that:
The homestead right is derived alone from the statute, but cannot be claimed and enforced by one tenant in common to the detriment of his co-tenants. Hence if he should happen to have erected and occupied a homestead on a piece of land which could not be partitioned without great prejudice to his co-tenants, it would have to be sold, but in that event the court would see that the value of the homestead and improvements, distinct from the land, would be secured to the party at whose expense and labor they had been made.

Johnson, 71 S.D. at 401, 24 N.W.2d at 918. In light of that statement, the Court determined that partition by sale was appropriate. Id.

[¶ 15.] Wells and Johnson lead us to conclude that partition is not precluded here. Wells does not preclude partition in this case because it involved a spousal homestead created by statute. Ethel is not a widowed spouse, and Dennis does not seek partition based on his status as an heir. Further, Johnson suggests that Ethel’s homestead interest must give way to the right of partition, Courts of other jurisdictions recognize the same principle. See, e.g., Squibb v. Squibb, 190 Cal.App.2d 766, 12 Cal.Rptr. 346 (Cal.Ct.App.1961) (“The law is now clear that a statutory homestead interest does not deprive the co-tenant of the right to have the common property partitioned and sold and that the homestead right of the co-tenant in his interest in the common property is no bar to a suit for that purpose.”); Thom, 14 Iowa 49, 1862 WL 264 at 4 (“The homestead right is derived alone from the statute, but cannot be claimed and enforced by one tenant in common to the detriment of his co-tenants.”); Banner v. Welch, 115 Kan. 868, 225 P. 98, 100 (1924) (“The rule is well settled that, when two or more parties buy real property, and become owners thereof as tenants in common, one of them cannot, as against his cotenant, establish a homestead upon the whole.”); Solomon v. Solomon, 187 Miss. 22, 192 So. 10 (1939) (“occupation of the property ... as a homestead did not enlarge [an] interest therein against ... cotenants, and it was at all times ... subject to partition at the suit of [the] cotenants”); Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769 (1942) (“[W]hile one tenant in common may acquire homestead rights in the common property, the rights so acquired are not superior to the rights and remedies of the other joint owners.”); see also Annotation, Homestead right of cotenant as affecting partition, 140 A.L.R. 1170 (“The cases uniformly hold or assume ... that the homestead rights of a cotenant, or of his spouse or family, in respect of his interest in the common property are not a bar to partition.”). Decisions to the contrary, like Wells, rely on specific statutory or constitutional provisions which prohibit the partition of a homestead under certain factual circumstances. See, e.g., Henderson v. Henderson, 212 Ark. 31, 204 S.W.2d 911 (1947) (constitutional provision prevented partition of widow’s homestead).

[¶ 16.] It stands to reason that Ethel’s homestead interest can only attach to the property interest which she holds — that is, her undivided one-half interest in the home. Cfi Chambliss v. Derrick, 216 Ala. 49, 112 So. 330, 332 (1927) (stating that a widow’s homestead interest “attached only to such right and title as was owned by her husband at the time of his death”); Squibb, 190 Cal.App.2d at 769, 12 Cal.Rptr. 346 (“The homestead claimant acquires only such rights of occupancy as he had before the creation of the homestead”); Banner, 115 Kan. 868, 225 P. at 100 (“All [a cotenant] can do is to establish a homestead as to creditors upon his separable interest or title.”); Solomon, 187 Miss. 22, 192 So. at 10 (noting that the cotenant’s homestead interest only applied to the interest owned — in that case, a three-fifths undivided interest in the property); Sayers, 139 Tex. at 64, 161 S.W.2d at 773 (“It is also a well-recognized principle of law that one’s homestead right in property can never rise any higher than the right, title, or interest he owns in the property attempted to be impressed with a homestead right.”). The occupation of the property by a cotenant as a homestead does not and cannot enlarge his interest as against his cotenants. Id.

[¶ 17.] Additionally, we have stated that the homestead interest is a privilege established by statute. Estate of Mathison, 468 N.W.2d at 403; see also 40 AmJur2d Homesteads § 2 (“Homestead rights did not exist under the common law. They are, it seems, peculiar to America, and exist by virtue of statute or constitutional provision.”). While the right of partition is also established by statute, SDCL 21-45-1, it is designated a right, as opposed to a privilege. See Braaten v. Braaten, 278 N.W.2d 448, 450-51 (S.D.1979) (noting that “a partition proceeding is a matter of right as an incident of common ownership,” but recognizing that the right of partition is subject to “the inherent jurisdiction [of the court] to adjust all the equities in respect to the property” and also “may be modified, limited, or waived by agreement of the cotentants”). As the Alabama Supreme Court explained,

Partition of lands held by tenants in common is a matter of right, regardless of the inconvenience resulting to joint owners.... In other words, the right of partition [in kind or in sale] is of right. Joint ownership is not compulsory.

Chambliss, 216 Ala. 49, 112 So. at 332 (emphasis added).

[¶ 18.] Ethel argues that this case is distinguishable from cases which state that the homestead interest of a cotenant in common property is no bar to another cotenant’s suit for partition. According to Ethel, those cases considered a homestead right arising after the parties became co-tenants. Because Ethel’s homestead interest arose prior to the creation of her cotenancy with Dennis, she asks us to find that the general rule does not apply here. In support of this argument, Ethel cites the decision of the Texas Supreme Court in Sayers v. Pyland, 139 Tex. at 57, 161 S.W.2d at 769. In her brief to this Court, Ethel argues that Sayers makes clear that the general rule — that a cotenant cannot assert homestead rights over another co-tenant’s right of partition — “applies only when the parties acquire ownership of the subject property as cotenants and one of them subsequently attempts to impress the property with a homestead.” (Emphasis in original). A close reading of Sayers, however, reveals that it considered only the general rule, not an exception for previously established homestead rights.

[¶ 19.] In Sayers, Pyland conveyed a one-half undivided interest in property to Williams. Id. at 59, 161 S.W.2d at 770. At the same time, however, the interest which Pyland retained became subject to a lien and a note held by Sayers. Id. When Sayers sued to recover on the note and foreclose on the entire property because of the lien, Pyland asserted his homestead interest in the entire property as a defense. Id. at 60, 161 S.W.2d at 770-71. Pyland argued that prior to Williams becoming a joint owner, Pyland held a homestead interest in the entire parcel. Id. at 65, 161 S.W.2d at 773. The court found, however, that Pyland voluntarily subordinated his right by the conveyance. Id. The Sayers court reasoned:

It is true that in this instance Pyland’s homestead right had attached to the property prior to the time Williams became a joint owner therein; but the record discloses that after they had acquired their homestead right therein, Pyland and wife, in the matter provided by law for the sale of a homestead, conveyed to Williams an undivided one-half interest in the property, and thereby voluntarily subordinated their homestead right to all the rights and obligations appertaining to the relation of tenants in common. Consequently they thereafter stood in the same position as if their homestead right in the property had been acquired after the parties had become tenants in common in the property.

Id. Under that reasoning, the court found that Pyland’s homestead interest arose after the lien attached to his interest in property, and therefore the one-half undivided interest in the property was subject to the lien. Id.

[¶ 20.] Ethel argues that the above quoted language of Sayers indicates that the time a homestead interest is established determines whether it is subject to the rights of a joint tenancy. Ethel’s argument, however, is misplaced. First, the court in Sayers found that the original homestead interest was lost. Therefore, it did not consider a homestead interest established prior to a cotenancy, and any language which suggests that such a right deserves greater deference is dicta. Second, Sayers did not consider the partition rights of a cotenant; it considered the rights of a creditor. Thus, it cannot be interpreted as establishing a distinction between homestead interests that arise prior to and after the creation of a joint tenancy.

[¶21.] Our only decision in this area, Johnson, indicates that a homestead interest must give way to a cotenant’s right of partition. We are not aware of and Ethel has not presented any case which parts with that general rule simply because the homestead interest arose before the coten-ancy was established. Courts have widely recognized the general rule that homestead interests exist subject to the rights of a cotenant and that the homestead interests exists only to the extent of an owner’s interest. Further, our prior cases establish that homestead is a privilege, not a right, under South Dakota law. In light of these well established principles, the paucity of authority for the distinction, and the facts of this case, we decline to hold that the rights of a cotenancy are subject to previously established homestead interests.

[¶ 22.] We conclude that Ethel’s homestead interest is subject to Dennis’ right of partition. While the result of this case may seem harsh, the equities of the situation are not without importance. We have recognized that the right of partition is subject to a balancing of the equities. Braaten, 278 N.W.2d at 450-51. Similarly, the Alabama Supreme Court recognized the significance of a court’s equitable powers in the context of a widow who held a homestead interest after the death of her husband:

The homestead right of the widow is, however, a favored one, and, in making partition or sale for division at the instance of tenants in common of her deceased husband, her homestead will, in equity, be preserved to her intact, the home itself rather than money in lieu of it, if this can be done without sacrifice to the rights of such tenants in common to have partition of the property.
If, as here, the widow’s homestead covers an undivided half interest in the property, and it is capable of equitable division into two equal parts, this will be done, and the court then proceed to sell for division the portion allotted to complainants and their fellow tenants entitled to share in the portion allotted to them on such division.

Chambliss, 216 Ala. 49, 112 So. at 332. We are persuaded that such equitable consideration of a homestead interest is appropriate in an action for partition. Therefore, while a homestead interest will not prevent partition, it is certainly relevant to the determination of the appropriate partition.

[¶ 23.] Therefore, we find that a coten-ant’s homestead interest exists subject to the right of partition which inures to a cotenancy. As stated by the Minnesota Supreme Court, the opposite conclusion “would at times result in great injustice; whereas the law, as we view it, permits the rights of all parties to be protected.” Smith, 195 Minn, at 593, 263 N.W. at 905. The trial court did not err when it ordered partition of the property.

[¶ 24.] Affirmed.

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

      . In several cases, we have explained the nature of joint tenancies:
      A joint tenancy exists when the four unities of time, title, interest, and possession are present. Destruction of one of the four unities terminates a joint tenancy and converts it into a tenancy in common. Under South Dakota law, a joint tenant with right of survivorship has the right to unilaterally terminate the joint tenancy at any time without the. knowledge or consent of the other joint tenants.

        In re Hoffman, 2002 SD 129, ¶ 9, 653 N.W.2d 94, 98 (citations omitted).

      . The relevant statute states:
      If the owner of [homestead] property ... or the spouse of such owner records in the office of the county clerk and recorder of the county where the property is situate an instrument in writing ... stating that the owner or the owner's spouse is homesteading such property ... then the signature of both spouses to convey or encumber such property shall be required.
      CRS 38-41-202(4).

      . In South Dakota, a statute authorizes actions for partition:
      When several cotenants hold and are in possession of real property as partners, joint tenants, or tenants in common, in which one or more of them have an estate
      of inheritance or for life or lives or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appear that a partition cannot be made without great prejudice to the owners.
      SDCL 21-45-1.

      .The parties do not challenge the trial court's conclusion that Ethel has a homestead interest in the property. By way of background, however, we note that the South Dakota Constitution mandates the enactment of statutes which protect a debtor’s homestead right. See SD Const, art XXI, § 4. In that regard, the Legislature adopted statutes which are now set forth in SDCL Chapter 43-31. The first statute in that chapter states in part:
      The homestead of every family, resident in this state, as hereinafter defined, so long as it continues to possess the character of a homestead is exempt from judicial sale, from judgment lien, and from all mesne or final process from any court, to the extent and as provided by statute.
      SDCL 43-31-1. For purposes of the homestead laws, SDCL 43-31-14 defines "family.” It states:
      A widow or widower, though without children, while continuing to occupy the homestead used as such at the time of the death of the husband or wife, or any family, whether consisting of one or more persons in actual occupancy of a homestead as defined in this code, shall be deemed and held to be a family within the meaning of the laws of this state relating to homesteads.
      SDCL 34-31-14 (emphasis added).

      . In her reply brief, Ethel also criticizes the footnote in the trial court’s memorandum opinion which noted "[ojther state cases precluding the claim of a homestead exemption against a tenant in common include: First Huntsville Properties Co. v. Laster, 797 S.W.2d 151, 153 (Tex.Ct.App. 1990) [ (Laster I) ] ('The homestead right of one cotenant may not prejudice the rights of other cotenants[’]).... ” Ethel correctly points out that the Laster I decision was appealed to the Texas Supreme Court, which criticized the court of appeals’ reliance on Sayers. See Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 131 n. 3 (Tex 1992) (Laster II). The court's statement in Laster II, however, actually militates against relying on Sayers in this case. It stated:
      It is not necessarily to address the question of which right in the residence, as between [ex-wife]'s homestead interest and [ex-husband’s creditor]’s right of partition, is paramount. The court of appeals misconstrued Sayers v. Pyland when it determined that the Sayers court stated that a cotenant's right to partition was paramount to another cotenant’s homestead right because that case rested its holding on the fact that the

        homestead right had been voluntarily subordinated to another cotenant’s rights.

        Id. (emphasis added). Further, any reliance on Texas cases is questionable because, "[i]n Texas, the homestead right constitutes an estate in land.” Id. at 129.

      . We note that Ethel’s homestead interest arose after she and Francis acquired joint interests in the property. Although the nature of the interest is different, Dennis derived his interest from Francis. The parties did not argue those facts, however, and we need not decide their significance.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice.

license: Public Domain

text:
    2006 SD 66
    A-G-E CORPORATION, a South Dakota Corporation, Plaintiff and Appellant, v. The STATE of South Dakota, by and through the State Department Of Transportation, a state agency, Defendant and Appellee.
    No. 23978.
    Supreme Court of South Dakota.
    Considered On Briefs May 23, 2006.
    Decided July 19, 2006.
    Rehearing Denied Aug. 16, 2006.

      Ronald G. Schmidt of Schmidt, Schroyer, Moreno Lee & Bachand PC, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Lawrence E. Long, Attorney General, William J. Nevin, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] A-G-E Corporation (A-G-E) entered into a road construction contract with the South Dakota State Department of Transportation (DOT) on a portion of U.S. Highway 83. DOT inspectors randomly spot inspected A-G-E’s work after each layer of the road work was completed, and gave verbal approval for each subsequent level to be applied. While the final layer was being applied, the state engineer determined that the elevation and slope of the roadway was off between the randomly inspected locations and required A-G-E to tear off the layers and re-grade to contract specifications. A-G-E brought suit against DOT claiming waiver or estop-pel precluded DOT from requiring A-G-E to perform additional work to correct the elevation and slope, as DOT’s employees had verbally approved the application of subsequent layers after randomly spot inspecting the work. A-G-E also claimed the work was “extra work,” or in the alternative “alterations,” under the terms of the contract for which A-G-E should have received additional compensation. On competing motions for summary judgment, the circuit court held for DOT. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On May 6, 2003, A-G-E submitted a sealed bid to DOT for grading, structures and part asphalt course for 11.065 miles of U.S. Highway 83 in Stanley County, South Dakota. A-G-E was awarded the contract as the low bidder. The contract was subject to the Standard Specifications for Roads and Bridges, 1998 Edition (hereinafter SSRB), published by DOT, except for section 5.8, which was modified by a “Special Contract Provision for Contractor’s Staking.”

[IT 3.] Per the provisions of the contract, A-G-E conducted the surveying and setting of blue-top grading stakes (blue-tops) at 100 foot intervals, using DOT’s specifications for the required slope and grade. The grading portion of the project required A-G-E to 1) prepare the sub-grade (dirt), 2) lay the sub-base (salvage material) to support the base course, 3) place the base course on the sub-base, and 4) place oil on top of the base course. Each layer was staked with blue-tops in order to achieve the correct slope, grade and depth of material per the provisions of the contract. The last layer required was an asphalt surface course, which was subcontracted by A-G-E with DOT approval.

[¶ 4.] The quantity of material necessary for each layer of the project was calculated based on the length, width, slope and desired grade elevation of the roadbed. A spreadsheet was used to determine the spread rate and was then included in the construction plans. DOT checkers reviewed the scale ticket of each A-G-E truck that brought material to the site, referred to the spread rate for the specific portion of the roadbed involved, and then directed the truck driver to dump the material over the prescribed length.

[¶ 5.] A-G-E was then responsible for equalizing the material in a windrow and then uniformly blading the material out to the required grade elevation and slope. The process was repeated for each truckload of material and for each layer of the project. A-G-E maintained its own checkers and inspectors on site during the project. However, the record does not indicate their function or what actions they took during the project.

[¶ 6.] After each layer was constructed, the state inspector assigned to the project checked the grade elevation and slope at randomly selected blue-tops. At each randomly selected blue-top that was inspected, the layers were found to be within the contract specifications. After each layer was inspected, the inspector verbally communicated to A-G-E an “okay” to proceed with the next layer. Once the first three layers were constructed, A-G-E placed the oil on top of the base course and DOT issued written consent for the subcontractor to begin applying the final layer of asphalt surface.

[¶ 7.] The contract required the asphalt surfacing to be one to one and one-half inches in depth. Shortly after the asphalt layer was started, it was discovered that a substantially irregular depth of asphalt was being laid down by the paving subcontractor with up to five inches of asphalt being laid in some spots in order to achieve the proper grade and slope. It was subsequently discovered that the grade and slope between the 100-foot blue-tops along approximately the first two miles of roadway did not comply with the contract specifications.

[¶ 8.] A-G-E was then directed by the DOT engineer to rework the material between the 100-foot blue-tops along the two miles of roadway in order to bring the grade and slope in those areas into compliance with the contract specifications. AG-E determined the manner in which to conduct the re-grading based on its experience, equipment and staffing. A-G-E hauled some excess gravel off site, stockpiled it and then brought the same gravel back onto the site to fill in low spots, and then re-graded the materials.

[¶ 9.] The quantity of materials used was neither increased nor decreased by DOT during the re-grading process. Nor did DOT alter the grade or alignment of the road from that shown in the original plans. At its own expense, DOT placed additional blue-tops every fifty feet longitudinally and every twelve feet across the width of the roadway to guide A-G-E’s corrective work.

[¶ 10.] A-G-E filed suit in circuit court claiming $45,517.50 in damages. A-G-E alleged in its complaint that the expenses were incurred as a result of DOT’S direction to remove excess gravel from high spots and fill low spots. A-G-E alleged that DOT waived its rights under the contract to a final inspection by virtue of conducting the random blue-top inspections of each layer and giving a verbal “okay” to proceed with the next layer. AG-E also alleged that the work required to re-grade the first four layers of the two-mile segment in question was “extra work,” or alternatively “alterations,” within the meaning of the DOT contract.

[¶ 11.] After DOT filed its answer, the depositions of Rick Gordon, engineering supervisor for DOT; Mark Peppel, the DOT project engineer who was supervised by Gordon; Rodney Larson, DOT senior transportation technician on the project, and Gary Johnson, president of A-G-E, were taken. A-G-E then moved for summary judgment, and DOT filed a cross-motion for summary judgment. On December 20, 2005, oral arguments were presented to the circuit court. The circuit court entered an order granting DOT’s motion and judgment of dismissal on January 4, 2006.

[¶ 12.] On appeal, A-G-E raises two issues for this Court’s review:

1. Whether the circuit court erred when it denied A-G-E’s motion and granted DOT’s motion for summary judgment.
2. Whether disputed material facts exist that require a reversal of the circuit court’s order granting DOT’s motion for summary judgment and a remand for trial on the matter.

We will address the issues in reverse order, as issue two is a threshold issue that determines whether the matter was appropriate for disposition via a motion for summary judgment.

STANDARD OF REVIEW

[¶ 13.] Summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). We will affirm the trial court’s grant or denial of a motion for summary judgment when no genuine issues of material fact exist, and the legal questions have been correctly decided. Titus v. Chapman, 2004 SD 106, ¶ 13, 687 N.W.2d 918, 923 (citing Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791 (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987))). We review the circuit court’s conclusions of law under the de novo standard. Id. (citing Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 419 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771)). However, we view all evidence and favorable inferences from that evidence in a light most favorable to the nonmoving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). We will affirm the circuit court on summary judgment if it is correct for any reason. Westfield Ins. Co., Inc. v. Rowe, 2001 SD 87, ¶4, 631 N.W.2d 175, 176 (citing Estate of Juhnke v. Marquardt, 2001 SD 26, ¶ 5, 623 N.W.2d 731, 732).

[¶ 14.] In order to prevail on a motion for summary judgment, the non-moving party “must present specific facts showing that a genuine, material issue for trial exists.” Stoebner v. South Dakota Farm Bureau Mut. Ins. Co., 1999 SD 106, ¶ 6, 598 N.W.2d 557, 558 (quoting Weiss v. Van Norman, 1997 SD 40, ¶ 9, 562 N.W.2d 113, 115) (citations omitted). “A disputed fact is not ‘material’ unless it would affect the outcome of the suit under the governing substantive law in that a ‘reasonable jury could return a verdict for the nonmov-ing party.’ ” South Dakota State Cement Plant Comm’n. v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 401 (quoting Weiss, 1997 SD 40, ¶ 11, n.2, 562 N.W.2d at 116 n.2 (quoting Parsons v. Dacy, 502 N.W.2d 108, 110 (S.D.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)))).

[¶ 15.] “On appeal, this Court can read a contract itself without any presumption in favor of the trial court’s determination.” Icehouse, Inc. v. Geissler, 2001 SD 134, ¶ 7, 636 N.W.2d 459, 462 (quoting Thunderstik Lodge, Inc. v. Reuer, 1998 SD 110, ¶ 12, 585 N.W.2d 819, 822). Thus, the interpretation of a contract is a question of law, which is reviewed de novo. Id. (citing Mahan v. Avera St. Luke’s, 2001 SD 9, 15, 621 N.W.2d 150, 154).

ANALYSIS AND DECISION
[¶ 16.] 1. Whether disputed material facts exist that require a reversal of the circuit court’s order granting DOT’s motion for summary judgment and a remand for trial on the matter.

[¶ 17.] As a threshold matter per the provisions of SDCL 15-6-56(c), summary judgment is appropriate when there is no genuine issue of material fact. SDCL 15-6-56(c). In addition, there must be no genuine issue on the inferences to be drawn from those facts. St. Paul Fire & Marine Ins. Co. v. Engelmann, 2002 SD 8, ¶ 15, 639 N.W.2d 192, 199 (citing Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). A fact is material when it is one that would impact the outcome of the case “under the governing substantive law” applicable to a claim or defense at issue in the case. Schwaiger v. Mitchell Radiology Associates, P.C., 2002 SD 97, ¶ 7, 652 N.W.2d 372, 376 (citing South Dakota Cement Plant Comm’n, 2000 SD 116, ¶ 9, 616 N.W.2d at 401 (quoting Stoebner v. South Dakota Farm Bur. Mut. Ins. Co., 1999 SD 106, ¶6, 598 N.W.2d 557, 558)). When a material fact is in dispute, a trial is required to resolve differing versions of the truth. See Hausch v. Donrey of Nevada, Inc., 833 F.Supp. 822, 825 (D.Nev.1993) (citing Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir.1982); Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982)).

[¶ 18.] In the instant case, A-GE submitted a statement of undisputed material facts along with its motion for summary judgment. DOT submitted a response to A-G-E’s statement of undisputed facts, along with its own statement of undisputed material facts in support of its cross-motion for summary judgment. AG-E did not object to DOT’s statement of genuine material facts. Nor did A-G-E argue below that genuine issues of material fact existed. Now on appeal, A-G-E asserts for the first time that such issues existed.

[¶ 19.] This Court does not review issues raised for the first time on appeal. Cain v. Fortis Ins. Co., 2005 SD 39, ¶ 22, 694 N.W.2d 709, 714 (quoting Action Meek, Inc. v. Deadwood Historic Preservation Comm’n, 2002 SD 121, ¶ 50, 652 N.W.2d 742, 755). Therefore, this issue is not properly before the Court and will not be addressed.

[¶ 20.] 2. Whether the circuit court erred when it denied A-G-E’s motion and granted DOT’s motion for summary judgment.

[¶ 21.] A-G-E advances three arguments in support of its contention that the circuit court improperly granted DOT’s cross-motion and denied its motion for summary judgment. A-G-E argues that DOT is subject to waiver, or in the alternative it is subject to estoppel as a matter of law. Third, A-G-E argues that the work required to re-grade the first four layers of the two-mile segment in question was “extra work,” or alternatively “alterations,” within the meaning of the DOT contract.

Waiver

[¶ 22.] “Waiver is a volitional relinquishment, by act or word, of a known, existing right conferred in law or contract.” Harms v. Northland Ford Dealers, 1999 SD 143, ¶ 17, 602 N.W.2d 58, 62 (citing Wieczorek v. Farmers’ Mut. Hail Ins. Ass’n of Iowa, 61 S.D. 211, 216-17, 247 N.W. 895, 897 (1933)). A waiver of a contractual right occurs “where one in possession of any [contractual] right ... and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right or of his intention to rely upon it[.]” Western Cas. and Sur. Co. v. American Nat. Fire Ins. Co., 318 N.W.2d 126, 128 (S.D.1982) (quoting Wieczorek, 61 S.D. 211 at 216-17, 247 N.W. at 897 (quoting Noem v. Equitable Life Ins. Co., 37 S.D. 176, 180, 157 N.W. 308, 309 (1916))). We interpret contracts on appeal “according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operations.” Citibank (S.D.), N.A. v. Hauff, 2003 SD 99, ¶ 12, 668 N.W.2d 528, 533 (citing Dakota, Minnesota & Eastern R.R. Corp. v. Heritage Mtit. Ins. Co., 2002 SD 7, ¶ 11, 639 N.W.2d 513, 515-16 (quoting Farm and City Ins. v. Estate of Davis, 2001 SD 71, ¶ 6, 629 N.W.2d 586-87)).

[¶ 23.] A-G-E argues that DOT waived its contractual right to reject work identified at the final inspection by the engineer as nonconforming when the project inspector made his inspections at randomly selected blue-tops and gave a verbal “okay” to A-G-E to proceed to the next layer. A-G-E supports its argument by arguing that DOT had a duty and opportunity to inspect the work as it progressed, and that A-G-E relied on the results of the inspections performed by the DOT inspector. A-G-E contends that each layer of the roadway was accepted by the conduct of the DOT inspector within the meaning of section 5.16 of the contract. A contrary interpretation, A-G-E argues, would result in the DOT inspector serving no viable function or purpose.

[¶ 24.] The relevant contract provisions are contained in DOT’S SSRB. Section 5.10, titled Duties of the Inspector, provides:

Department inspectors will be authorized to inspect all work done and materials furnished. This Inspection may extend to any part of the work, preparations, fabrications or manufacture of the materials to be used. The Inspector is not authorized to alter or waive the provisions of the contract. The Inspector is not authorized to issue instructions contrary to the Contract, or to act as a foreman for the Contractor. The Inspector will have the authority to reject work or materials until any issues can be referred to and decided by the Engineer.

(emphasis added). Section 5.1, titled Authority of the Engineer, provides:

Work shall be performed to the satisfaction of the Engineer. The Engineer will decide questions which may arise as to the quality and acceptability of materials furnished, work performed, rate of progress of the work; all questions which may arise as to the interpretation of the plans and specifications; all questions as to the acceptable fulfillment of the contract on the part of the Contractor; and disputes between Contractors where it effects the progress of the work. The Engineer’s decision shall be final.

Finally, section 5.16, titled Final Acceptance, provides:

When the contract work, including authorized modifications and final cleanup has been completed, the Region Engineer or his designee, will within five days, exclusive of holidays, make a final inspection of the work. When provided in the Contract, the Region Engineer or his designee may make inspections following completion of portions of the contract. If the work is found to conform with the requirements of the Contract, the Region Engineer or his desig-nee will issue written notification to the Contractor of acceptance by the Department of Transportation. Such notice is not to be construed as an acceptance by the Region Engineer or his designee of previously noted defective or unauthorized work, or of unauthorized work subsequently determined during the final computations of field measurements. Should the work fail to conform with requirements of the Contract, a written statement of the features to be remedied will be given the Contractor. Final acceptance will not be made until the Contractor advises the Engineer that the corrections have been made and the requirements have been met.

(emphasis added).

[¶ 25.] A-G-E’s interpretation of the role of the DOT inspector is not controlling. A-G-E’s argument that the DOT inspectors serve no purpose if it cannot rely upon their work as a measure of conformity with contract provisions is immaterial to A-G-E’s duties under the contract. Whatever purpose DOT may have for utilizing inspectors is independent of A-G-E’s duties under the contract. The contract language in section 5.10 merely notifies the contractor that it must permit the DOT inspector access to conduct any and all inspections that DOT requires.

[¶26.] It is the language of the contract that controls. The language permits the DOT inspector to inspect and reject work in progress. The contract does not authorize the DOT inspector to supervise, approve or accept work on behalf of DOT. Nor does the DOT manual require such work-in-progress inspections, or give assurance that such inspections eliminate the contractor’s duties under the contract. In addition, section 5.10 specifically states that the inspector “is not authorized to alter or waive the provisions of the contract.” Only the DOT engineer can effect final acceptance and relieve the contractor of further duties under the contract.

[¶ 27.] Furthermore, the contract language is clear that the entire project must substantially conform to its requirements, not just those portions of the project inspected by the DOT inspector while work is in progress. Section 5.3 of the DOT’s SSRB provides:

In the event the Engineer finds the materials furnished, work performed, or the finished product are not in reasonably close conformity with the plans and specifications resulting in an inferior or unsatisfactory product, the work or materials shall be removed and replaced or corrected by and at the expense of the Contractor.

[¶ 28.] A-G-E, as the contractor, had the duty to perform its work in conformity with “the lines, grades, cross sections, dimensions and material requirements, including tolerances, shown on the plans, specifications or other contract documents.” SSRB, § 5.3 Conformity with Plans and Specifications. The fact that AG-E elected to rely on the DOT inspector’s random blue-top stake inspections as a means of determining whether it was in conformity with the contract requirements does not waive DOT’s right to enforce the terms of the contract.

[¶ 29.] More importantly, A-G-E has not argued that DOT was aware that the grade and slope were not within project specifications at certain points between the blue-tops. This is significant because waiver requires a relinquishment of rights with “full knowledge of the material facts.” Western Cas. & Stir. Co. v. American Nat’l Fire Ins. Co., 318 N.W.2d 126, 128 (S.D.1982). There is no dispute in the record that neither party knew the work between the blue-tops did not conform to contract specifications until after the DOT inspector had given a verbal “okay” to proceed to the asphalt surface course, the final layer in the construction process. Therefore, even though DOT randomly inspected the roadway between the blue-tops, waiver could not apply because there is no evidence that DOT had knowledge of the noncompliance between the blue-tops.

[¶ 30.] A-G-E’s second argument under its waiver theory, that the interim inspections and partial payments for the earlier stages of the project constituted acceptance and “certification” that those portions of the roadway had been completed in conformance with the contract specifications under SSRT section 5.16, must also fail. SSRB section 5.16 generally deals with acceptance when “the contract work ... has been completed.” Although section 5.16 also contemplates some interim final acceptances, it does so only when interim acceptances are “provided in the Contract.” A-G-E has not identified contract provisions authorizing interim final acceptance following partial completion of this contract. More importantly, even if the interim final acceptances were authorized by this contract, section 5.16 requires that the regional engineer must issue “written notification to the contractor of [the] acceptance.... ” In this case, A-G-E has not indicated that DOT issued such written notifications of acceptance of the prior portions of the project.

Estoppel

[¶ 31.] A-G-E next argues DOT should be estopped from asserting any fault on the part of A-G-E for causing the needed rework. A-G-E argues it relied upon the DOT inspector’s random blue-top inspections for assurance that it was in compliance with the requirements of the contract. A-G-E concedes that the depth, slope and grade requirements were met at the randomly selected blue-tops inspected by the DOT inspector. It also concedes that the spread rate was not in error.

[¶ 32.] Under this Court’s holding in Western Casualty and Surety Co.,

To create an estoppel, there must have been some act or conduct upon the part of the party to be estopped, which has in some manner misled the party in whose favor the estoppel is sought and has caused such party to part with something of value or do some other act relying upon the conduct of the party to be estopped, thus creating a condition that would make it inequitable to allow the guilty party to claim what would otherwise be his legal rights.

318 N.W.2d at 128 (quoting Somers v. Somers, 27 S.D. 500, 504, 131 N.W. 1091, 1093 (1911)). Estoppel will be applied against a party “who by their words or conduct take positions inconsistent with their rights, unfairly misleading others into detrimental reliance.” Harms, 1999 SD 143, ¶ 17, 602 N.W.2d at 62 (citing Western Casualty and Surety Co., 318 N.W.2d at 128 (citing Somers, 27 S.D. at 504, 131 N.W. at 1093)). It requires concealment, misrepresentation, or conduct at odds with known facts. Action Meek, Inc., 2002 SD 121, ¶ 29, 652 N.W.2d at 751 (stating that representation or concealment of material fact must exist).

[¶ 33.] A-G-E cites to Northern Improvement Co. v. South Dakota State Highway Comm’n, 267 N.W.2d 208 (S.D.1978), for the proposition that DOT waived its right to a final inspection by virtue of the inspector’s verbal “okay” to proceed to the next layer. However, in that case the engineer ordered alterations to the original plans, required the contractor to use substandard material and poor construction techniques, and ordered additional work outside the scope of the original contract. Id. at 210. After the work product failed to perform as originally envisioned under the contract, the commission refused to pay for the additional work. Id. It did so arguing that the contractor had failed to properly preserve its claim by complying with the written notice requirements under the contract. Id. at 211. This Court held that the broad supervisory authority of the engineer as contained in the 1968 version of the SSRB gave him authority to decide the manner in which the contractor performed its work. Id. at 214. That authority coupled with the contractor’s frequent discussions with the resident engineer, district engineer and department engineer was sufficient to estop the state from claiming lack of written supplemental agreement, change order, or notice of claim so as to bar the contractor’s claim for additional compensation. Id.

[¶ 34.] A-G-E cites to several other cases where state or city engineers were invested with broad supervisory authority to control the manner in which the contractor conducted the work. See City Street Improvement Co. v. City of Marysville, 155 Cal. 419, 101 P. 308 (1909); Schliess v. City of Grand Rapids, 131 Mich. 52, 90 N.W. 700 (1902); Wildey v. Fractional School Dist. No. 1 of Paw Paw and Antwerp, 25 Mich. 419 (1872); Laycock v. Moon, 97 Wis. 59, 72 N.W. 372 (1897); Ashland Lime, Salt & Cement Co. v. Shores, 105 Wis. 122, 81 N.W. 136 (1899). In these cases, the state or city engineers also had a duty to inspect that was clearly defined in the contract and ordered work to proceed despite the protests of the contractor that the work was deficient, or ordered additional or different work to be performed than what was original provided for in the contract. None of the cases cited by A-G-E support its assertion that the actions of an inspector without authority to accept work as final, or to order changes to the contract, can estop DOT from enforcing section 5.16 on final acceptance.

[¶ 35.] In the instant case, the DOT inspector did not have similar broad authorities under the SSRB to supervise and direct the manner in which A-G-E completed the work. Section 5.10 made it unequivocally clear that the DOT inspector could not serve as foreman for A-G-E, nor alter or waive provisions of the contract. The DOT inspector did not order A-G-E to proceed to the next layer, but rather gave a verbal “okay” that the random inspections of blue-tops had not revealed any nonconforming work in a particular layer.

[¶ 36.] In addition, the DOT inspector did not falsely represent, conceal any material facts, or engage in any of the types of conduct that are required for equitable estoppel to apply. A-G-E concedes that the depth, grade and slope at the blue-tops were in compliance with the contract requirements. The defects in the project were discovered in areas that had not been inspected. Moreover, the defects in the project were not discovered by the inspector, but rather by the asphalt contractor when the depth of the asphalt layer began to vary widely by up to five inches. Therefore, just as is the case for waiver, estoppel could not apply because there is no evidence in the record that the DOT had knowledge of the noncompliance of those portions of the roadway between the blue-tops prior to the application of the final layer. See supra ¶ 29.

[¶ 37.] Finally, at the time the roadway layers were initially placed by A-G-E, the DOT inspector did not order additional or different work to be done than what was originally contemplated in the contract. Only after the nonconformity was discovered was direction given by the DOT engineer to A-G-E to strip off layers and rework the materials to achieve the proper grade and elevation.

Extra Work or Alterations

[¶ 38.] A-G-E’s final argument is that the work required to bring the roadway slope and grade into conformity with the provisions of the contract was “extra work” or in the alternative “alterations” within the meaning of SSRB. Section 4.3 of the SSRB defines “extra work.” It provides:

The Contractor shall perform authorized work, for which there is no price included in the contract, whenever necessary or desirable in order to complete the work as contemplated. Such work shall be performed in accordance with the specifications and as directed, and be paid for as provided under Section 9.5.

A-G-E argues the rework was authorized and necessary for the completion of the project to the satisfaction of the DOT engineer and not provided for in the contract.

[¶ 39.] A-G-E’s argument that the work conducted after the slope and grade were discovered to be nonconforming was for work for which there was “no price included in the contract.” A-G-E’s argument lacks merit, as the contract language specified a price for the work required to achieve the specified grade elevation and slope for each of the four roadway layers. All the work conducted by A-G-E after the discrepancy was discovered was more properly classified as rework for failure to achieve the contract specifications. Therefore, section 4.3 does not apply.

[¶ 40.] As to A-G-E’s alterations argument, that subject is addressed in section 9.2 of the SSRB, and provides in relevant part:

The Department reserves the right to make such increases or decreases in quantities and such alterations in the work within the general scope of the contract, including alterations in the grade or alignment of the road or structure or both, as necessary or desirable. Such increases or decreases and alterations shall not invalidate the contract nor release the surety. The Contractor agrees to accept the work as altered, as if it had been a part of the original contract.

[¶ 41.] No increase or decrease in the quantities of material was required by the DOT engineer during the rework phase of the project. In addition, the slope and the grade of the roadway were not altered from the original plans. Instead, the DOT engineer required A-G-E to rework the same quantity of materials on the nonconforming portions of the roadway in order to achieve the original slope and grade required under the contract. The rework did not alter the project as originally planned. It merely served to correct AG-E’s errors, which were due to either an inability or failure to monitor its own work.

[¶ 42.] The circuit court did not err when it granted DOT’S motion for summary judgment. Therefore, we affirm on all issues. Affirmed.

[¶ 43.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . It should also be pointed out that clauses in the "Special Provision for Contractor’s Staking” also made A-G-E responsible for the problems now in dispute, notwithstanding the fact that DOT may have randomly checked the slope and grade at various times before the project was completed. That provision provided:
      The Contractor shall perform all construction layout and reference slaking necessary for the accurate control and completion of all ... grading [and] ... paving.
      The Contractor shall be solely responsible for the accuracy of the staking.
      Any deficient survey layout or staking that results in construction errors shall be
      corrected by the Contractor at no additional charge to the [DOT],
      The Engineer may check the accuracy and control of the Contractor’s survey work at any time. The checks performed by the Engineer will not relieve the Contractor of the responsibility for the accuracy of the survey layout or the construction work.
      These contractual provisions clearly relieved DOT of responsibility for ascertaining the accuracy of the work in dispute until final notification of acceptance under SSRB § 5.16.

      . "Blue-tops” are grade stakes with a blue ribbon or blue spray paint at the top that are set at the desired elevation on the centerline as an aid for the contractor to blade the material to the required grade elevation.


author: CARTER, Justice.

text:
    Jeri Rae McVEY, Appellant, v. NATIONAL ORGANIZATION SERVICE, INC., Appellee.
    No. 04-1769.
    Supreme Court of Iowa.
    Aug. 11, 2006.
    Mark T. Hedberg, Des Moines, for appellant.
    Jacqueline K. Samuelson and Gretchen Witte Kraemer of Whitfield & Eddy, P.L.C., Des Moines, for appellee.
   CARTER, Justice.

Plaintiff, Jeri Rae McVey, who was discharged by her employer defendant, National Organization Service, Inc. (NOS), after testing positive for marijuana ingestion, brought the present action alleging her employer’s noncompliance with the statutes governing employee drug testing and requesting damages for wrongful termination of her employment. The district court granted summary judgment for the employer, and plaintiff appeals. After reviewing the record and considering the arguments presented, we conclude that, at the time of the district court’s judgment, there were genuine issues of material fact remaining that precluded the grant of summary judgment. Consequently, we reverse the judgment of the district court and remand the case to that court for further proceedings consistent with our opinion.

When McVey reported for work at NOS on July 9, 2003, she was subjected to a random drug test. The laboratory results returned to her employer were positive as to the presence of marijuana. Prior to the time that McVey was to report for work on the date that the test results were obtained by NOS, she telephoned her employer and questioned whether the result of her random drug test was positive. The substance of this telephone conversation is disputed; however, it is agreed that McVey was advised that the test results were positive for marijuana and that her employment was terminated. McVey did not return to work after this conversation.

On November 13, 2003, McVey filed this action alleging that the random drug test imposed on her was carried out in violation of the statutory requirements for employee drug testing contained in Iowa Code section 730.5 (2003). As a result of that alleged violation, she sought to recover damages from NOS, including reinstatement of her employment pursuant to the provisions of Iowa Code section 730.5(15)(o).

During the discovery process, NOS filed several requests for admission. Based on McVey’s answers to those requests and an affidavit of its Des Moines manager, NOS moved for summary judgment. Included in the statement of undisputed facts filed by NOS in support of that motion was a contention that McVey had been informed of the company’s drug-testing policy that prohibited the use of illegal drugs by NOS employees. Attached to that statement were two exhibits, exhibit D, which was alleged to include the written drug-testing policy that NOS adopted pursuant to section 730.5(9), and exhibit E that was denominated as “DRUG-FREE WORKPLACE POLICY” and pertained to federal law requirements that, because NOS was a federal contractor, its employees must report controlled substance convictions to the employer and ultimately to the federal government. Exhibit E also required the employee to waive any breach-of-privacy claim against the employer for conveying an employee’s controlled substance history to a federal agency.

To obtain a grant of summary judgment on some issue in an action, the moving party must affirmatively establish the existence of undisputed facts entitling that party to a particular result under controlling law. Goodwin v. City of Bloomfield, 203 N.W.2d 582, 588 (Iowa 1973). To affirmatively establish uncon-troverted facts that are legally controlling as to the outcome of the case, the moving party may rely on admissions in the pleadings, see Fisher Controls Int’l v. Marrone, 524 N.W.2d 148, 149 (Iowa 1994), affidavits, depositions, answers to interrogatories by the nonmoving party, and admissions on file. Iowa R. Civ. P. 1.981(3). Except as it may carry with it express stipulations concerning the anticipated summary judgment ruling, a statement of uncontroverted facts by the moving party made in compliance with rule 1.981(8) does not constitute a part of the record from which the absence of genuine issues of material fact may be determined. Glen Haven Homes, Inc. v. Mills County Bd. of Review, 507 N.W.2d 179, 182 (Iowa 1993). The statement required by rule 1.981(8) is intended to be a mere summary of the moving party’s factual allegations that must rise or fall on the actual contents of the pleadings, depositions, answers to interrogatories, and admissions on file together with any affidavits. Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994). If those matters do not reveal the absence of genuine factual issues, the motion for summary judgment must be denied. Mead v. Lane, 203 N.W.2d 305, 307 (Iowa 1972).

Among the detailed requirements for employee drug testing that are contained in section 730.5, it is provided that drug testing shall be carried out within the terms of a written policy that has been provided to every employee and is available for review. Iowa Code § 730.5(9)(a )(1). It is further provided that this written policy shall provide “uniform requirements for what disciplinary or rehabilitative actions an employer shall take against an employee or prospective employee upon receipt of a confirmed positive drug or alcohol test.” Iowa Code § 730.5(9X6).

In seeking to uphold the district court’s grant of summary judgment, NOS relies on the principle that under Iowa law, if an expressly stated term of employment is not provided by contract, employment is at will. It urges that exceptions to that rule relating to discharges found to be in violation of public policy as applied in Springer v. Weeks & Leo Co., 429 N.W.2d 558, 561 (Iowa 1988), are not applicable because public policy does not favor the presence of drug users in the workplace. McVey urges, and we agree, that the present dispute does not involve an issue of court-declared public-policy violations such as were found to exist in the Springer case, but rather involves compliance with detailed statutory requirements, which create a cause of action in favor of one who has been injured by a failure to abide those requirements. We recognized in Tow v. Truck Country of Iowa, Inc., 695 N.W.2d 36, 39 (Iowa 2005), that a discharge from employment may be based on an employee drug-testing program only if that program is being carried out in compliance with the governing statutory law.

McVey acknowledges receipt of exhibit E but, in both her answers to request for admissions and the affidavit that she filed, denies receiving or otherwise being made aware of the company drug-testing policy set forth in exhibit D. McVey urges that the requirement that the employer adopt an employee drug-testing policy and deliver it to each employee is a necessary step in invoking the statutory authorization for such testing. We agree. We further agree that it is essential the employee drug-testing policy, as formulated by the employer, contain uniform requirements for what disciplinary or rehabilitation actions an employer shall take against an employee or prospective employee upon receipt of a confirmed positive drug test. Clearly, exhibit E, which is the only statement of policy that McVey admits to having received, fails to satisfy these requirements. Consequently, there remains a genuine issue of material fact as to whether exhibit D was received by McVey. In addition, on the latter matter, McVey asserts that, in any event, exhibit D does not contain the required statement of a uniform requirement for discipline on receipt of a confirmed positive drug test and fails to comply with the statute in other respects. We express no opinion on those matters and leave them as issues to be resolved on remand in the event that the district court finds that McVey was furnished with a copy of exhibit D. For the reasons advanced in this opinion, the court erred in granting summary judgment in favor of NOS.

We have considered all issues presented and conclude that the judgment of the district court must be reversed. The case is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . That the public policy exception to at-will employment recognized in Springer is based on a court-declared public policy is borne out in Fitzgerald v. Salsbury Chemical, Inc., 613 N.W.2d 275 (Iowa 2000), in which we observed "we must proceed cautiously when asked to declare public policy to support an exception to the at-will doctrine, and only utilize those policies that are well recognized and clearly defined.” Fitzgerald, 613 N.W.2d at 283. In the present case, we must apply that public policy that the legislature has set forth in section 730.5.


author: LARSON, Justice.

text:
    Walter Norman KISTLER and Jean Ann Kistler, Appellants, v. CITY OF PERRY, Iowa, Appellee.
    No. 04-1459.
    Supreme Court of Iowa.
    Aug. 11, 2006.
    Stephen V. Nielsen of Skinner & Nielsen, P.L.C. West Des Moines, for appellants.

      Sarah M. Kouri and William L. Dawe III of Hopkins & Huebner, P.C., Des Moines, for appellee.
   LARSON, Justice.

The City of Perry, acting under authority of its nuisance-abatement ordinances, seized twelve vehicles from the plaintiffs’ property. The plaintiffs, Walter and Jean Kistler, challenged the seizure through an action seeking temporary and permanent injunctions and damages. The district court denied the injunction and granted the city’s partial motion for summary judgment over the plaintiffs’ argument that the seizure orders were unconstitutional. The plaintiffs appeal, and we reverse.

I.Facts and Prior Proceedings.

The plaintiffs own three properties in Perry. In the fall of 2002, the city became concerned about a number of vehicles that it considered junk on one of the Kistlers’ lots. On November 6, 2002, the city sent a notice to the plaintiffs to remove the vehicles within fourteen days. The plaintiffs declined, and as the city had threatened, it seized the vehicles. The plaintiffs claimed foul because they were seized without an opportunity for them to challenge the city’s actions or to establish whether they were, in fact, junk under the city’s ordinance.

The November 6, 2002 notice to the Kistlers stated:

You are hereby notified to abate the nuisance existing [on the plaintiffs’ property] within 14 days from receipt of this notice.
The nuisance consists of junk and junk vehicles that shall be abated by removal from the above referenced properties.
In the event that you fail to abate, or cause to be abated, the above referenced nuisance within the time period designated herein, the City of Perry will take such steps as are necessary to abate, or cause to be abated, said nuisances and the cost of the abatement action will be assessed against you and/or the above-referenced properties, as provided by law.

The notice did not inform the Kistlers of any opportunity to have a hearing on the matter, and the city concedes that neither the notice to abate nor the ordinance provides for any such hearing. The issue presented on appeal is whether the city’s nuisance-abatement provision, allowing seizure of the vehicles under these circumstances, denied the plaintiffs due process.

II. Principles of Review.

We review a district court’s grant of a summary judgment for correction of errors at law. Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003). Summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id. We, of course, review constitutional issues de novo. Dressier v. Iowa Dep’t of Transp., 542 N.W.2d 563, 565 (Iowa 1996).

III. The City Ordinances.

The Kistlers argue that section 50.05 of the city’s ordinance is unconstitutional because it places sole discretion over nuisance abatement in an administrative officer, without providing for a due-process hearing. Under that ordinance,

[w]henever the Compliance Officer finds that a nuisance exists, such officer has the authority to determine on a case-by-case basis whether to utilize the nuisance abatement procedure or to issue a citation to the person for violation of this Code of Ordinances.

The plaintiffs contend that the city’s compliance officer arbitrarily determined their vehicles to be a nuisance. The city responds that this determination was made on the basis of a city ordinance that deemed certain conditions to be nuisances. Section 50.02 lists certain conditions, not including vehicles, that are deemed to be nuisances. However, in section 50.03, the ordinance provides:

The following chapters of this Code of Ordinances contain regulations prohibiting or restricting other conditions which are deemed to be nuisances:
1. Junk and Junk Vehicles (See Chapter 51).

Chapter 51, in turn, provides a broad definition of junk vehicles. In part, it provides that “Junk vehicle” means “any vehicle legally placed in storage with the County Treasurer or unlicensed and which has any of the following characteristics!!.]” Then follows a list of conditions that will cause a vehicle to be considered junk. If the vehicle has broken glass; a broken, loose, or missing part; houses nuisance animals; contains any flammable fuel; or if it is “inoperable” or in a “defective or obsolete condition,” it fits the definition.

Section 51.02 then provides:

JUNK AND JUNK VEHICLES PROHIBITED. It is unlawful for any person to store, accumulate, or allow to remain on any private property within the corporate limits of the City any junk or junk vehicle.

Legislatures have broad authority to define nuisances and to provide methods for their abatement. See 58 Am.Jur.2d Nuisances § 48, at 605 (2002). This is true as to city governments in Iowa. See Iowa Code § 364.12(3) (“A city may: a. Require the abatement of a nuisance, public or private, in any reasonable manner.”). The operative word in this statute is “reasonable.” The plaintiffs claim that the city’s ordinance is so unreasonable it violates due process, and there is considerable support for that claim in the general nuisance law.

Generally, before the abatement of a nuisance, the property owner responsible for the nuisance is entitled to due process of law, that is, formal notice and hearing to determine whether the property is in fact a nuisance in most instances. If possible, the owner of property should, before its destruction, be given a hearing upon the question of whether the property is in fact a menace to the community. Requirements of due process are satisfied by a statute authorizing the destruction of property as a public nuisance where it provides for an investigation and ascertainment of the facts by a public officer, notice to the owner, and an appeal to the court from the decision.

58 Am.Jur.2d § 406, at 831 (footnotes omitted). “Things which are by common or statutory law declared to be nuisances per se, or which are by their very nature palpably and indisputably such, may be abated or destroyed by public authorities without notice or hearing.” Id.

In this case, the city does not contend that these vehicles were “palpably and indisputably” nuisances. However, the city claims the vehicles were clearly made nuisances through the enactment of its ordinance that defined junk vehicles. See id. at 831-32 (“Where a statute so specifically defines what constitutes a nuisance as to leave no room for latitude on the question, officials are authorized and protected in abating such described nuisances and no notice or hearing is required.”).

However, the city’s ordinance defining junk vehicles is so broad that it gives little meaningful notice as to what constitutes junk. In Perry, for example, an unlicensed vehicle with a broken or cracked windshield or other glass, and a broken, loose, or missing part, or containing “gasoline or any other flammable fluid” (which all vehicles do), could be seized by the city’s enforcement officer. In contrast to this broad definition of junk vehicles, a state statute provides this objective, understandable description of a similar category of vehicles:

“Wrecked or salvage vehicle” means a damaged vehicle for which the cost of repair exceeds fifty percent of the fair market value of the vehicle before it became damaged.

Iowa Code § 321H.2(10).

In Walker v. Johnson County, 209 N.W.2d 137 (Iowa 1973), junk cars were also at the center of controversy. In that case, the Johnson County Health Board was empowered “to investigate, on complaint or on its own initiative, any health nuisance in the county and order its abatement.” However, the ordinance made no provision for notice or hearing to determine whether a health nuisance in fact existed. Walker, 209 N.W.2d at 138. We said:

Under these circumstances, where no emergency exists and the determination of a nuisance lies only in the discretion of an administrative officer, the scales tip against unrestricted governmental action under the guise of police power and in favor of the due process notice and hearing requirements.

Id. at 140.

In this case, the city argues that Walker must be distinguished because, unlike the present case, the owners of the vehicles in Walker lacked advance notice as to what constituted a hazard. We noted that “the unlicensed cars, however offending aesthetically, are nowhere defined as a health nuisance per se.” Id. We disagree with the city’s rejection of the Walker rationale. Here, the ordinance describing junk vehicles is so broad that it fails to give any meaningful notice as to what may be seized or what limits are imposed on the powers of the enforcement officer. Moreover, as in Walker there is no evidence that the vehicles were “palpably and indisputably” nuisances or that “there is any evidence of an emergency situation.” Id. at 139-40.

In an analogous case involving two states’ replevin statutes permitting seizures without prior notice and opportunity to be heard, the Supreme Court observed:

For more than a century the central meaning of procedural due process has been clear: “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233, 17 L.Ed. 531.... It is equally fundamental that the right to notice and an opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”

Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 569-70 (1972) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62, 66 (1965)).

Moreover, as the Court noted, a postsei-zure remedy is usually inadequate:

If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if they were unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred. “This Court has not ... embraced the general proposition that a wrong may be done if it can be undone.”

Fuentes, 407 U.S. at 81-82, 92 S.Ct. at 1994-95, 32 L.Ed.2d at 570 (quoting Stanley v. Illinois, 405 U.S. 645, 647, 92 S.Ct. 1208, 1210, 31 L.Ed.2d 551, 556 (1972)).

We hold that the ordinance under which these vehicles were seized denied the plaintiffs their procedural due process rights in violation of the Fourteenth Amendment to the United States Constitution and article I, section 9 of the Iowa Constitution. The plaintiffs also ask that we declare the ordinance unconstitutional on its face. This is also an issue we addressed in Walker:

There remains the question of the scope of this decision. Enactments may be constitutional in operation with respect to some persons and states of fact and unconstitutional as to others. An enactment may be limited to its valid applications.
Under other circumstances involving a palpable health nuisance per se, or in a situation of clear and compelling emergency, the board’s ordinance might arguably function within the due process constitutional parameters where validity of state police power enactments are litigated. We do not decide that issue. We only decide the ordinance, in the case of Walker, operates unconstitutionally in violating due process ....

209 N.W.2d at 140 (citations omitted).

In this case, the ordinance does not require the enforcement officer to seize vehicles without a hearing; it only authorizes the officer “to determine on a case-by-case basis whether to utilize the nuisance abatement procedure or to issue a citation .... ” Under this ordinance, the enforcement officer could follow either alternative by providing a notice and hearing and thereby avoiding constitutional problems. We do not believe the ordinance is invalid on its face.

According to the record, residents of Perry have been upset about the Kistlers’ operation for years, and that is understandable. But, regardless of how aesthetically offending the vehicles might be, they were not shown to be so clearly and palpably nuisances that they could be legally seized without notice or hearing. We therefore reverse the judgment of the district court and remand for further proceedings under the plaintiffs’ petition for injunctions and damages.

REVERSED AND REMANDED.

All justices concur except WIGGINS, J., who takes no part.


author: HANSON, Justice. ANDERSON, PAUL H., Justice ANDERSON, G. BARRY, Justice

text:
    STATE of Minnesota, Appellant, v. James Howard DeROSIER, Respondent.
    No. A03-1718.
    Supreme Court of Minnesota.
    June 29, 2006.
    Rehearing Denied Aug. 29, 2006.

      Stephen V. Grigsby, Robert D. Miller, Minneapolis, MN, for Respondent.
    Mike Hatch, Minnesota Attorney General, Thomas Ragatz, Saint Paul, MN, Thomas Murtha, Aitkin County Attorney, Ait-kin, MN, for Appellant.
   OPINION

HANSON, Justice.

Respondent James DeRosier was convicted of criminal sexual conduct in the first degree in violation of Minn.Stat. § 609.342, subds. 1(b), 2(a) (2000), for having sex with a victim who was 15 years old when DeRosier was 49 years old and in a position of authority over the victim. At trial, the victim testified to sexual encounters that occurred over the months of June, July, and August of 2000, but the jury simply found DeRosier guilty of first-degree criminal sexual conduct without determining the specific date or dates of the offense. On August 1, 2000, the presumptive sentence for criminal sexual conduct in the first degree changed from 86 months to 144 months in prison. The judge sentenced DeRosier to 144 months in prison using the presumptive sentence applicable after August 1, 2000. On appeal, DeRosier argued that the jury had not clearly found that DeRosier had sex with the victim after August 1, 2000, and therefore his sentence was in violation of Blakely v. Washington because the use of the increased presumptive sentence depended on the determination of disputed facts not found by a jury. The court of appeals reversed DeRosier’s sentence as violative of Blakely and remanded to the district court for resentencing. We affirm.

N.P. moved to Aitkin County with her family in 1999, when she was approximately 14 years old. Her family became friendly with respondent DeRosier, a local man who was in the same line of business as N.P.’s mother. In 2000, N.P. babysat DeRosier’s two young children and then began helping him run his livestock auctions, for which DeRosier paid her in cash. N.P. stated that she often accompanied DeRosier on driving trips to pick up items for the auction. N.P. testified that while in the beginning, DeRosier struck up innocent conversations with her, he soon began introducing increasingly sexual topics.

Finally, N.P. testified that one evening after an auction, DeRosier gave her beer and ultimately had sex with her in his ear. N.P. testified that after this initial encounter, she and DeRosier had sex regularly after the auctions, about seven to ten times per month.

N.P. stated the sexual encounters began in June 2000 and that she knew “for sure” that one sexual encounter took place in August because she connected it to the time her grandmother was visiting from California. N.P. also testified that DeRo-sier told her that “nobody could ever find out” about their relationship because “[h]e would end up going to jail and he would never be able to see his kids again.”

At some point before her 16th birthday (November 16, 2000), N.P. discovered that she was pregnant. N.P. testified that she knew DeRosier was the father because he was the only person with whom she had ever had sex. A DNA test indicated that the probability was 99.99% that DeRosier was the father of N.P.’s baby. Based on the newborn exam, the date of birth, the ultrasound, and the date of N.P.’s last menstrual period, N.P.’s doctor testified that N.P.’s baby was conceived in June 2000.

At the end of trial, the judge instructed the jury that in order to find DeRosier guilty of first-degree criminal sexual conduct, they were required to find “that [DeRosier’s] act took place on or about June, July, or August 2000 in Aitkin County.” Neither DeRosier nor the state requested that the jury determine the specific date or dates of the offense(s). The jury found DeRosier guilty of criminal sexual conduct in the first degree and the court entered judgment of conviction. At sentencing, the judge stated that the presumptive sentence was 144 months and imposed that sentence. DeRosier did not object to the judge’s statement that 144 months was the presumptive sentence, and did not raise any issue concerning the date of the offense.

DeRosier appealed his conviction to the court of appeals, but then requested and was granted a stay of appeal in order to file a petition for post-conviction relief with the district court. In that petition, DeRo-sier sought to lower his sentence from 144 months to 86 months on the basis that in June and July of 2000 the presumptive sentence for his crime was 86 months, not 144 months, and that the presumptive sentence was raised to 144 months only in August.

The post-conviction petition, which was filed on May 6, 2004, was not based on Blakely, which was released on June 24, 2004. The district court’s decision, filed August 10, 2004, also did not refer to Blakely. The district court concluded, on the basis of this court’s pr e-Blakely case law, that a reduction in DeRosier’s sentence would only be appropriate if “there is no reasonable likelihood that all of [DeRosier’s] acts” occurred before August 1, 2000. Because the victim had testified that DeRosier had engaged in sexual intercourse with her in August of 2000, the district court denied DeRosier’s request for a reduction in sentence.

The court of appeals reversed and remanded for resentencing. That court first stated that under pr e-Blakely Minnesota law, when a crime requiring only a single offense occurs on an unspecified date within a specified time period, a defendant has the right to have a jury decide the date of the offense. The court held that while this right under Minnesota case law is forfeited if the defendant fails to request a special interrogatory verdict, a defendant’s Blakely rights can only be waived if the waiver is knowing, intelligent, and voluntary. The court concluded that DeRosier’s Blakely rights were implicated here, because the judge’s determination that DeR-osier’s offense took place in August of 2000 led to the imposition of a higher sentence than was necessarily supported by the jury’s verdict. The court noted that:

[I]n these circumstances, placing the burden on the defendant to request a special interrogatory asking the jury to determine the date of the offense conflicts with the holding of Blakely. Under Blakely, a defendant has the right to a jury determination of any facts that extend the duration of the sentence, and the burden is on the state, not the defendant, to prove these facts.

I.

Our first task is to determine whether Blakely applies to a situation where the presumptive sentence depends on a date not precisely found by the jury. Because the presumptive sentence for first-degree criminal sexual conduct changed from 86 months to 144 months on August 1, 2000, if DeRosier had sex with N.P. in June or July but not August, the presumptive sentence would have been 86 months, not 144 months. DeRosier argues that the district court finding that one of the sexual encounters occurred in August was akin to an upward departure and thus was made in violation of Blakely because it was made by the court without a jury. The state argues that Blakely may not apply because “[ujnlike Blakely, this case does not involve a factual finding that increases the ‘statutory maximum’ sentence ⅝ * *, but rather involves a factual finding that determines which ‘statutory maximum’ applies, the pre-August 1, 2000 presumptive sentence or the post-August 1, 2000 presumptive sentence.”

The sentencing challenge here is based on a legal issue that we review de novo. State v. Barker, 705 N.W.2d 768, 771 (Minn.2005). In Blakely, the United States Supreme Court held that a court could not impose a sentence above the statutory maximum on the basis of facts not found by a jury, as that would be a violation of the defendant’s right to trial by jury. Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court said:

[T]he “statutory maximum” for Appren-di purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.

Id. at 303-04, 124 S.Ct. 2531 (citations omitted). In a subsequent case, Shepard v. United States, the Court elaborated on the jury determination requirement: “the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.” 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (emphasis added).

If the determination of which presumptive sentence applies depends on a fact issue, Blakely and Shepard suggest that such an issue is for the jury to decide. Here, the district court independently decided that at least one of DeRosier’s sexual offenses occurred after August 1, 2000, and, based on that decision, sentenced DeRosier to a longer sentence than the pre-August presumptive sentence. We agree with the court of appeals that Blakely applies to this situation and that the district court’s independent determination of the date of the defendant’s offense is a violation of Blakely.

II.

The state argues that even if the sentence is a Blakely violation, DeRosier forfeited his Blakely objection because he did not ask for the jury to determine the date of his offense. The state alleges that DeRosier had the settled right under Minnesota law at the time of the trial to ask for the jury to determine the date of his offense, but he did not do so. The state relies on our pYe-Blakely case law that, although a defendant has the right to have the jury determine the date of his offense, State v. Robinson, 480 N.W.2d 644, 646 (Minn.1992), a defendant must exercise that right by requesting a special interrogatory and waives the right by failing to do so, State v. Murray, 495 N.W.2d 412-13 (Minn.1993).

DeRosier argues that any waiver of Blakely rights must be knowing, intelligent, and voluntary. DeRosier suggests that a failure to ask the jury to determine the date of the offense does not constitute a knowing, intelligent, and voluntary waiver of his Blakely rights. He argues that “waiver cannot be inferred from facts in the record, nor implied from the circumstances but it must be ⅜ * * ‘express, intelligent consent.’ ”

Normally, a district court error not objected to at trial is deemed forfeited. See, e.g., State v. Jones, 678 N.W.2d 1, 22 (Minn.2004); State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). But the outcome here is controlled by our recently released opinion in State v. Osborne, 715 N.W.2d 436, 2006 WL 1549940 (Minn.2006). In Osborne, we concluded that the right to a jury trial under Blakely may not be forfeited by silence. Id. at 442, 2006 WL 1549940 at *4. Our decisions in Robinson and Murray do not limit DeRosier’s rights under Blakely. Accordingly, we conclude that DeRosier did not forfeit his Blakely rights for purposes of this appeal.

III.

As we stated in Osborne, it is uncertain whether the Supreme Court intended Blakely violations to be regarded as structural errors, requiring reversal regardless of prejudice. Id. at 447 n. 8, 2006 WL 1549940 at *10 n. 8. Therefore, we examine the Blakely violation in this case under a harmless error standard. An error is not harmless if there is any reasonable doubt the result would have been different if the error had not occurred. See State v. Naylor, 474 N.W.2d 314, 319-20 (Minn.1991). Here, if the district court had not implicitly found that DeRosier had a sexual encounter with the victim after August 1, DeRosier’s sentence would have been 58 months shorter. This is clearly a different — and prejudicial- — -result. Therefore, the error was not harmless.

Affirmed.

ANDERSON, PAUL H., Justice

(concurring).

I agree with the result reached by the majority, but disagree with the majority’s analysis as to Issues I and II. See State v. Osborne, 715 N.W.2d 436, 448-52, 2006 WL 1549940, at *10-14 (Minn.2006) (Anderson, Paul H., J., concurring specially)-

ANDERSON, G. BARRY, Justice

(concurring).

I join in the concurrence of Justice Paul H. Anderson.