author: KONENKAMP, Justice

text:
    2000 SD 67
    John GILCHRIST, Plaintiff and Appellant, v. TRAIL KING INDUSTRIES, INC., and Rehabilitation Strategies, Inc., Defendants and Appellees.
    No. 20782.
    Supreme Court of South Dakota.
    Considered on Briefs June 1, 1999.
    Decided May 24, 2000.

      Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, J.M. Grossenburg, Winner, for plaintiff and appellant.
    Susan Jansa Brunick of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee Trail King.
    Lisa Hansen Marso and Gary J. Pashby of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for defendant and appellee Rehabilitation Strategies.
   KONENKAMP, Justice

[¶ 1.] John Gilchrist appeals summary judgment in favor of defendant Rehabilitation Strategies, Inc. We affirm.

Facts

[¶ 2.] Gilchrist was an employee of Trail King Industries, Inc. On September 1, 1994, while working in the scope of his employment, he slipped and fell off a platform. As he fell, a ring on his right “pinkie” finger caught on a bracket, momentarily suspending his fall and injuring him. He was treated that day by Dr. M.J. Christensen and sent home. He complained of injuries to his finger, neck, shoulder, rotator cuff, hands, back, and internal organs.

[¶ 3.] After the initial appointment, Dr. Christensen referred Gilchrist to Dr. Edward Adams, an orthopedic surgeon, who in turn, sent him to Dr. Myung Cho, a physiatrist. Doctors P.H. Rasmussen and Dennis Leland, among others, also treated him for various medical problems. Although he was consulting other doctors, Dr. Cho considered herself Gilchrist’s treating physician for his work-related injury.

[¶ 4.] Trail King, a self-insured employer, began paying workers’ compensation benefits to Gilchrist, including medical expenses. After he participated in physical therapy for eight weeks, Trail King hired Rehabilitation Strategies, Inc. (RSI) to oversee his rehabilitation program. RSI’s employee, Kathy Burns, was assigned to his case. Burns sent him a letter on November 4, 1994 introducing herself, and stating that she would work with him, his employer, his physicians, and others “to assist [him] in returning to work.” When they first met on November 7, Burns told him that she was hired to get him “squared away.” She began attending his doctor appointments with him and discussed his return to work with Trail King. Burns later explained that it was her policy “to keep [Trail King] informed as to when Mr. Gilchrist was able to go to work and what his medical status was.”

[¶ 5.] On December 5,1994, Dr. Cho saw Gilchrist. Burns was also there, and the three discussed the topic of Gilchrist’s return to work. Based on the progress he was making in physical therapy, Dr. Cho issued a release to work on light duty, four hours per day. Dr. Cho was not aware, however, that he was vomiting blood and was bleeding from his rectum, as he did not report these problems to her. According to Dr. Cho, she had requested Burns to give her Gilchrist’s other medical records to review, but she did not receive them. Burns had access to those records and knew of Gilchrist’s ongoing medical problems, but did not mention these other conditions to Dr. Cho.

[¶ 6.] On December 13, 1994, Gilchrist went to Trail King and reported that he was still too ill to work. Norman Tarbell, Trail King’s workers’ compensation coordinator, told him to come back the next day and together they would call any physician Gilchrist requested to discuss his medical condition. Gilchrist did not return. On December 14, Trail King sent Gilchrist a certified letter informing him that because Dr. Cho had authorized a release, he was to report to work within forty-eight hours of the receipt of the letter or he would be terminated. Trail King then arranged for Gilchrist to see Dr. David Hoversten for an independent medical evaluation. Also on December 14, Gilchrist saw doctors Leland and Christensen and both authorized no work. Burns knew that Dr. Adams also had questions regarding a work release because Burns faxed Tarbell a note on December 20 stating “Doctor Adams questions jobs per phone.” Gilchrist’s final work release was also to be approved by Dr. Christensen. Burns admitted that she “had no communication whatsoever with Dr. Christensen.” She explained that this was because “[h]e was not actively involved with the injuries that were related to Mr. Gilchrist’s case at that time.”

[¶7.] Gilchrist saw Dr. Hoversten on December 22. Dr. Hoversten found that Gilchrist suffered a rotator cuff injury and had carpal tunnel syndrome in both hands. He recommended that surgery be performed at the same time to repair both the rotator cuff injury and the carpal tunnel syndrome in the right hand. He later testified that it would have been good practice to do the surgeries simultaneously, but performing them together was not medically necessary. The surgery was scheduled for February 4,1995.

[¶ 8.] Burns, as the coordinator for Gilchrist’s health care, was also in contact with his other doctors and the representatives of Risk Administration, the third party administrator for Trail King. Risk Administration asked Dr. Cho to evaluate the extent of Gilchrist’s work-related injuries. By letter dated January 25, Dr. Cho explained that Gilchrist’s right shoulder injury and injury to his right hand were the result of his fall at work; however, the rest of his injuries were not caused by the accident.

[¶ 9.] On January 30, Gilchrist saw Dr. Cho again, accompanied by a representative of RSI. At this appointment, Gilchrist was still reporting internal bleeding, which was being treated by Dr. Christensen. Gilchrist expressed confusion to Dr. Cho about whether he was able to return to work with his ongoing medical problems. Dr. Cho believed that Trail King was willing to have him come back to work. She wrote another work release returning him to the same light duty she had authorized previously, provided Dr. Christensen approved the release. Dr. Cho’s treatment notes also reflect that she discussed the need for Dr. Christensen’s prior approval with RSI’s representative. RSI assured Dr. Cho that Dr. Christensen would be contacted. No release was ever sought from Dr. Christensen, apparently.

[¶ 10.] After RSI received Dr. Cho’s letter on the unrelatedness of Gilchrist’s carpal tunnel syndrome to his workers’ compensation injury, it recommended to Trail King that it not accept responsibility for the cost of the carpal tunnel surgery. When Dr. Hoversten received this news he notified Gilchrist. Gilchrist later said he could not go through with surgery because workers’ compensation was “jerking him around,” and he did not have the money to pay for the uncovered portion of the surgery. He cancelled the entire procedure.

[¶ 11.] Gilchrist filed a workers’ compensation action. He also brought this suit on March 16, 1995 against both Trail King and RSI alleging bad faith, intentional infliction of emotional distress, and wrongful termination. In October 1995, the circuit court ordered a stay of the bad faith cause of action, “pending the exhaustion of administrative remedies, except as it may relate to the remaining causes of action.”

[¶ 12.] The Department of Labor issued a decision on workers’ compensation benefits in December 1997. It ruled that Gilchrist was entitled to rotator cuff and carpal tunnel surgery on his right hand, but that his claimed total disability from severe depression was not caused by the work injury. Gilchrist appealed in February 1998. Based on the Department’s decision, RSI and Trail King moved for summary judgment. At the hearing, Gilchrist urged the trial court to postpone its decision on summary judgment until after the ruling on Gilchrist’s appeal from the Department’s decision. The court declined to wait, granted summary judgment to RSI on all Gilchrist’s claims, and denied Trail King’s summary judgment motion. The court also granted RSI certification under SDCL 15-6-54(b). In the meantime, the circuit court presiding in the workers’ compensation appeal reversed the Department’s decision on Gilchrist’s psychological disability claim and found it to be work related and compensable. Thereafter, the Department ruled that the “depression that both sides agree now makes him totally disabled,” entitles Gilchrist to continued total disability benefits. The circuit court later affirmed. Today, in an opinion issued concurrently with this one, we affirm that ruling. Gilchrist v. Trail King Industries, Inc., (Gilchrist II), 2000 SD 68, 612 N.W.2d 1.

[¶ 13.] Gilchrist appeals, contending that (a) the court was premature in granting summary judgment to RSI after staying proceedings, including discovery; (b) material issues of fact exist to bar summary judgment; and (e) judgment was improperly certified for appeal under SDCL 15 — 6—54(b). We review summary judgments under our familiar standard first set out in Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Analysis and Decision

Summary Judgment Granted During Stay of Discovery

[¶ 14.] Gilchrist contends that the court prematurely granted summary judgment as it had earlier ordered a stay of proceedings, including discovery, pending exhaustion of Gilchrist’s administrative remedies. Nonetheless, Gilchrist did not request a continuance or submit an affidavit on his inability to respond to the summary judgment motions. If additional discovery is needed before a matter is ready for summary judgment, the party opposing the motion must by affidavit show that facts essential to justify opposition cannot be presented by affidavit without further discovery. SDCL 15 — 6—56(f); Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., 511 N.W.2d 567, 569 (S.D.1994); Brown v. Chaffee, 612 F.2d 497, 504-05 (10thCir.1979) (necessity of discovery before summary judgment cannot be raised on appeal if no complaint was made in the trial court). Even if a stay of discovery is in place, “[t]he possibility that discovery will yield evidence favorable to a party opposing summary judgment is not a ground to deny summary judgment where the party opposing summary judgment has failed to invoke the procedures under [Rule 56(f) ] to submit affidavits stating a need for discovery or to request a continuance in order to present further affidavits or depositions in opposition to summary judgment.” Larson v. Baer, 418 N.W.2d 282, 288-89 (N.D.1988). The court did not err in proceeding with the summary judgment motions.

Separate Liability of Rehabilitation Consultant

[¶ 15.] The crucial question here is whether RSI, the rehabilitation consultant Trail King hired to assist Gilchrist in returning to work, owed a legal duty to him and, if so, whether it breached that duty. Gilchrist alleges that Trail King and RSI “acted and conspired together to inflict emotional distress,” refused to pay for his medical expenses and surgery, discontinued his physical therapy and medicinal needs, and tried to compel him to return to work without appropriate releases from his physicians. At the summary judgment hearing, RSI contended that Trail King made all decisions on benefit payments. As for compelling Gilchrist to work before he was medically able, RSI insisted it did not influence Trail King, and that Dr. Cho and the employer made those decisions. We will examine separately each of Gilchrist’s claims against RSI.

a. Bad Faith

[¶ 16.] Whether an employer’s rehabilitation consultant can be held liable to a workers’ compensation claimant for bad faith is a question of first impression in South Dakota. In the insurance context, an insurer’s violation of its duty of good faith and fair dealing may give rise to the tort of bad faith. See Stene v. State Farm Mut. Auto. Ins. Co., 1998 SD 95, ¶ 19, 583 N.W.2d 399, 403. In such cases, there must be a failure to comply with a duty under the insurance contract. Id.

[¶ 17.] Analogously, to establish bad faith against a workers’ compensation rehabilitation consultant there must first be a showing that the rehabilitationist owed a duty to the injured worker. The existence of a duty depends on the nature of the relationship; thus, we must decide if a relationship existed between the parties that imposes on RSI a k:gal obligation to Gilchrist that may give rise to a tort for its violation. See Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993) (citations omitted). RSI was retained by Trail King, a self-insured employer, to assist Gilchrist in returning to work. Burns, in her deposition, acknowledged that: “I am a coordinator, a communicator between the insurance company, the injured worker, the employer and the medical providers.”

[¶ 18.] The Illinois Supreme Court concluded that the relationship in these cir-eumstances is primarily between the rehabilitation company and the workers’ compensation insurer. Cole v. Byrd, 167 Ill.2d 128, 212 Ill.Dec. 234, 656 N.E.2d 1068 (1995). Likewise, in Campbell v. Eckman-Freeman & Assoc., 670 N.E.2d 925, 934 (Ind.Ct.App.1996), an Indiana Appeals Court ruled that the injured worker and the rehabilitationist “did not have a relationship ... which would support a duty in negligence.” By factoring policy considerations, the nature of the relationship, and foreseeability, the Campbell court reasoned that “no duty should be recognized” under the facts of that case. Id. at 935. Recognizing the competing policy concerns, the court wrote:

The medical rehabilitation coordinator is hired by the insurer with the goals of containing costs and returning the employee to work as expeditiously as possible, but also as safely as possible. On the other hand, the injured worker cannot be considered and treated as a party possessing equal bargaining power. The balancing of these important policy considerations is a task that should be reserved for the legislature. At the very least, companies that render rehabilitation services such as Eckman-Freeman should be required to disclose to the injured employee the limited nature of their obligations and make clear that they are employed by the insurance carrier.

Id. Nonetheless, the court also stated that if the worker had been able to establish that the rehabilitation company had caused the worker additional injuries then public policy would dictate that the worker be compensated. We find these authorities persuasive.

[¶ 19.] For a workers’ compensation claimant to have a separate cause of action against the rehabilitation consultant hired by the employer to assist the claimant in returning to work, the claimant must show that the consultant caused some additional injury to the claimant. Campbell, 670 N.E.2d at 935. Gilchrist claims that RSI acted in consort with Trail King to inflict emotional distress, to prematurely return him to work, to terminate his employment, and to end his medical care and coverage. These assertions must be examined separately; otherwise, the duty of an employer to the injured employee and the duty of the rehabilitation consultant to the employer become intermeddled.

[¶ 20.] In Stump v. Commercial Union, 601 N.E.2d 327 (Ind.1992), an agent of the workers’ compensation carrier promised to provide the claimant, who lost both legs in an industrial accident, certain necessary care and equipment in order to induce him to leave the hospital fourteen days early. Id. at 329 n. 1. The agent never supplied the additional services and as a result the claimant suffered additional physical injuries which kept him from being fitted with permanent artificial limbs. The Indiana Supreme Court upheld a cause of action against the carrier for its agent’s tortious conduct. Id. at 334.

[¶ 21.] In Vakos v. Travelers Insurance, 691 N.E.2d 499 (Ind.Ct.App.1998), the court upheld a claim by an injured worker against his employer’s workers’ compensation carrier because the negligent acts “were committed subsequent to and independent of the original injury.” Id. at 503. The alleged injuries occurred from the case manager’s negligence in directing medical treatment, and not from processing claims on benefits for the underlying injury. Id.

[¶ 22.] Lastly, in Rayford v. Lumbermens Mutual Casualty Co., 840 F.Supp. 606 (N.D.Ind.1993), Rayford’s psychological disorders arose from and were proximately caused by his work related accident and not by the allegedly tortious acts of the defendants. Id. at 611-12. The Ray-ford court recognized that Stump only permits injured workers to pursue claims against their employers’ carriers if there were “additional injuries or harm proximately caused by [the carriers’] actionable conduct.” Id. at 610 (quoting Stump, 601 N.E.2d at 331) (emphasis omitted).

[¶ 23.] With these cases to guide us, we ask, what additional injuries does Gilchrist allege occurred as a result of RSI’s subsequent and independent acts of bad faith in coordinating care and rehabilitation for his underlying injuries? In his brief Gilchrist states that “Burns hounded Dr. Cho for an inappropriate work release which was then used to terminate [him] from his job while he was still convalescing. This sent him spiraling downward emotionally and psychologically.” The Department has now concluded, however, that Gilchrist is totally disabled and entitled to continued total disability payments as a result of his work related depression, resulting from his original injury compounded by the delays in his rotator cuff and wrist surgeries. Thus the very injuries for which Gilchrist claims RSI is responsible were adjudged to be work related and compen-sable. We conclude, therefore, that under the facts of this case, RSI has not caused additional injuries to Gilchrist such that an action for bad faith can be sustained. We affirm summary judgment on this cause of action.

b. Wrongful Termination

[¶ 24.] Gilchrist argues that RSI and Trail King conspired to end his employment. RSI, however, maintains that a wrongful termination claim is proper against an employer only. We must agree, as Gilchrist cites no authority to the contrary. Because Trail King, not RSI, made the decision to fire Gilchrist, RSI cannot be liable for wrongful termination. We therefore affirm summary judgment on this claim.

c. Intentional Infliction of Emotional Distress

[¶ 25.] Gilchrist alleges in his complaint that many actions of both RSI and Trail King support his suit for intentional infliction of emotional distress. Most prominent is the claim that RSI sent its “representatives to attend plaintiffs personal physician visits over his objections; and then [discussed] plaintiffs private personal ' conditions with his doctors in his presence with the obvious intent to [report] the results to others.” RSI’s representative, Burns, is a nurse.

[¶ 26.] To prove the tort of intentional infliction of emotional distress, the claimant must show that the actor (1) by extreme and outrageous conduct, (2) acted intentionally or recklessly to cause the plaintiff severe emotional distress, (3) which conduct in fact caused the plaintiff distress, and (4) the plaintiff suffered an extreme, disabling emotional response to the actor’s conduct. Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 428 (S.D.1994). To be outrageous, the conduct must be “so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Stene, 1998 SD 95, ¶ 32, 583 N.W.2d at 404 (quoting Tibke v. McDougall, 479 N.W.2d 898, 907 (S.D.1992)). From our review of the record, we see no conduct approaching the outrageous. Summary judgment was proper.

[¶ 27.] Affirmed.

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

      .Trail King eventually terminated his employment, but the parties disagree on when it was effective. Gilchrist claims he was fired on December 14, 1994. RSI, however, states that Trail King “considered Gilchrist to have voluntarily quit” on February 14, 1995. Burns testified in her deposition that on January 30, 1995, she contacted Trail King and it claimed it still "had a job” for Gilchrist. Trail King claims that Gilchrist signed for the certified letter on December 21, but it did not accept Gilchrist's "voluntary resignation” until February 1995, after numerous attempts to contact him by phone, mail, through counsel, and in person.

      . Trail King claims it never received copies of these notes.

      . Dr. Cho's work release underwent a series of modifications. She first issued a release in early December. There were questions from Dr. Adams about Gilchrist running a forklift, so he did not initially approve the work release. Dr. Cho later added a restriction to her original work release that Gilchrist not run a forklift while taking certain pain medication. Also, after Dr. Cho became aware of Gilchrist’s internal bleeding, she modified her work release to be contingent on Dr. Christensen’s approval.

      . Trail King claims that after Gilchrist was approved for light duty work, his benefits were reduced, but not ended. Temporary partial disability checks were sent to Trail King from Risk Administration and were available for Gilchrist, but he never went to Trail King to pick them up, nor did he inquire about them.

      . We examine a decision to certify under § 54(b) pursuant to the abuse of discretion standard. Ochs v. Northwestern Nat'l Life Ins. Co., 254 N.W.2d 163, 166, 169 (S.D.1977). We find no abuse of discretion.


source: Caselaw Access Project

author: GILBERTSON, Justice

license: Public Domain

text:
    2000 SD 79
    Eugene F. GOEBEL, Claimant and Appellant, v. WARNER TRANSPORTATION, Employer and Appellee, and Dakota Truck Underwriters, Insurer and Appellee, and J.W. Hutton, Inc., Intervenor.
    No. 21185.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2000.
    Decided June 14, 2000.

      Thomas M. Issenhuth of Arneson, Issen-huth & Gienapp, Madison, for claimant and appellant.
    Susan Brunick Simons of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for Employer, Insurer and appellees.
   GILBERTSON, Justice

[¶ 1.] Eugene Goebel (Goebel) appeals the circuit court’s order denying his claim for worker’s compensation benefits. The Department of Labor (Department) and the circuit court found Warner Transportation (Warner) had met its burden of proving SDCL 62-4-37 barred Goebel’s claim. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On June 12,1993, Goebel left Sioux Falls, South Dakota, to drive a semi-truck for his employer, Warner, to Salinas, California, where he arrived on June 15. After completing his duties in Salinas, Goebel was off-duty for approximately ten hours. He and some other drivers obtained a hotel room. He did not sleep during that time. Goebel left Salinas at approximately midnight on June 16, 1993 and drove through Nevada and Wyoming. According to his “Driver’s Daily Log,” Goebel slept for eight hours between Las Vegas and Mesquite, Nevada on June 16. On June 17th, Goebel slept four hours between Mesquite and Rawlings, Wyoming. Goe-bel slept for approximately four hours in Laramie, Wyoming, before continuing his journey. Upon reaching North Platte, Nebraska, Goebel stopped for one-half hour to shower. His next stop was at a rest area approximately fifteen minutes outside of Grand Island to use the restroom. At approximately 4:50 a.m., Goebel’s truck left the paved surface of Interstate 80 about five miles outside of Grand Island, Nebraska, and hit a bridge rail, rolling onto the driver’s side, and eventually coming to rest in the interstate median ditch. It appeared to law enforcement that the truck had simply drifted off the road and tipped over, as there was no evidence of braking or skid marks present on the pavement.

[¶ 3.] Goebel had to be removed from the truck by rescue personnel, as there was extensive damage to the driver’s side of the truck’s cab. He was taken to a Grand Island hospital, where he was alert and awake, although he could not remember what happened since his stop at the rest area. Goebel complained of neck pain and stated he could not feel or move his lower extremities. He was diagnosed with a closed head injury, a C6-7 fracture (fracture of the sixth and seventh cervical vertebrae of the neck), with C6 quadriplegia and a compound fracture of the left shoulder. Thus, Goebel, 36 years old at the time of the accident, has been rendered a quadriplegic with no possibility of physical recovery to his lower extremities.

[¶ 4.] While medical staff were evaluating Goebel, an implied consent form was read to him so that a blood sample could be taken for the purpose of ascertaining the presence of any alcohol. The results of this test were negative.

[¶ 5.] A urinalysis was subsequently requested and taken when a member of the rescue team at the scene of the accident found a black wallet which contained drug paraphernalia, including a small mirror, razor, spoon and a small brown vial containing a white powdery substance. A field test indicated the substance was methamphetamine. The wallet was found when law enforcement requested rescue personnel to search the truck, to look for identification of the accident victim, as Goebel’s identity was not known at that time.

[¶ 6.] The urine sample was analyzed by the Nichols Institute, which utilized testing protocols established by the United States Department of Transportation. The testing showed a positive result for the drugs methamphetamine and marijuana. These two drugs are illegal, controlled substances pursuant to 21 C.F.R. § 1308.11, and classified as Schedule I drugs which are specifically prohibited by the DOT Federal Motor Carrier Safety Regulations Handbook. Goebel eventually admitted to smoking one marijuana cigarette on June 11, 1993, before beginning his trip to California, and snorting l/10th of a gram of methamphetamine at midnight on June 15, 1993, while waiting for his truck to be loaded in Salinas. He had purchased $25.00 worth of methamphetamine while in Salinas.

[¶ 7.] Goebel brought a claim for worker’s compensation benefits before the Department. Warner denied liability for his injuries, claiming SDCL 62^4-37 barred compensation because Goebel’s illegal drug use was a substantial factor contributing to his accident and resulting injuries. Warner presented the expert testimony of Dr. Michael Evans, a board certified toxicologist at the American Institution of Toxicology in Indiana, who testified that to a reasonable degree of scientific probability, Goebel’s use of methamphetamine and marijuana impaired his driving ability, and that the impairment was a substantial factor in his accident.

[¶ 8.] Dr. Paul Pentel, Director of the Division of Clinical Pharmacology and Toxicology at the Hennepin County Medical Center in Minnesota, testified on behalf of Goebel. He testified impairment could not be determined solely from the positive urine drug test, stating there was not enough information available to form a credible conclusion as to whether Goebel was in fact impaired at the time of the accident.

[¶ 9.] The Department entered its decision and an order and findings of fact and conclusions of law on February 10, 1999, finding Warner, as a matter of law, had met its burden in proving Goebel’s illegal use of Schedule I drugs was a substantial factor in the cause of the June 18, 1993 accident. Goebel appealed to the Hughes County Circuit Court which affirmed the Department’s decision. Goebel appeals, raising three issues which can be consolidated into one:

Whether the Department and the circuit court erred in finding that illegal drug use was a substantial factor in causing Goebel’s injuries.

STANDARD OF REVIEW

[¶ 10.] Our standard of review pursuant to SDCL 1-26-36 requires us to give great weight to the Department or hearing examiner on factual questions. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citing Helms v. Lynn’s, Inc., 1996 SD 8, ¶¶ 9-10, 542 N.W.2d 764, 766; Finck v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988)). This Court reviews agency findings in the same manner as the circuit court in deciding whether they were clearly erroneous in light of all the evidence. Id. (citing In Matter of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415 (S.D.1986)). Only if after a review of the entire record we are definitely and firmly convinced a mistake has been committed will we reverse. Id. (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)). When the issue is a question of law, the actions of the agency are fully reviewable. Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 15, 571 N.W.2d 376, 379 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766) (citing Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991)). “We review the findings based on deposition testimony and documentary evidence under a de novo standard of review.” Id. ¶ 15, 571 N.W.2d at 380 (citing Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 8, 558 N.W.2d 76-78) (citing Caldwell, 489 N.W.2d at 357). “Likewise, mixed questions of fact and law which require the application of a legal standard are fully reviewable.” Egemo, 470 N.W.2d at 820 (other citations omitted).

ANALYSIS AND DECISION

[¶ 11.] Whether the Department and the circuit court erred in finding that illegal drug use was a substantial factor in causing Goebel’s injuries.

[¶ 12.] Goebel challenges the Department’s finding that his use of illegal Schedule I drugs was a substantial factor in causing the accident that led to his injuries. SDCL 62^1-37 provides that injuries caused by the use of Schedule I or Schedule II drugs are not compensable:

No compensation shall be allowed for any injury or death due to the employee’s willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug, or willful failure or refusal to use a safety appliance furnished by the employer, or to perform a duty required by statute. The burden of proof under this section shall be on the defendant employer, (emphasis added).

[¶ 13.] Under SDCL 62-4-37, Warner has the burden to prove Goebel’s injuries were due to the illegal use of methamphetamine and marijuana. Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 11, 545 N.W.2d 834, 836. The words “due to” in SDCL 62-4-37 refer to proximate cause. Id. ¶ 13, 545 N.W.2d at 837 (citing Driscoll v. Great Plains Marketing Co., 322 N.W.2d 478, 479 (S.D.1982)). This Court stated in Driscoll:

When an injury may have had several contributing or concurring causes, the correct standard against which cause is measured is the substantial factor test and not a ‘but for’ test. ‘When there is evidence of concurring or contributing causes, the trial court is required to apply the proximate causation standard expressed in South Dakota Pattern Jury Instructions!)]’
When the expression ‘proximate cause’ is used, it means that cause which is an immediate cause and which, in natural or probable sequence, produced the injury complained of. It is a cause without which the injury would not have been sustained. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.
322 N.W.2d at 479 (quoting Leslie v. City of Bonesteel, 303 N.W.2d 117, 120 (S.D.1981))(other citations omitted).

Id.

[¶ 14.] Evidence regarding the presence of methamphetamine and marijuana was submitted through the urinalysis test results, experts’ opinions regarding the effects such illegal drugs would have on driving abilities, and the circumstances surrounding the accident itself.

[¶ 15.] An initial screen of Goebel’s urine sample was performed by a procedure known as Enzyme Immunoassay. This screen showed a positive result for the classes of drugs amphetamines and marijuana metabolites (THC). Once a positive result was obtained on the initial urine screening, a confirmation test was performed utilizing the “gold standard” for confirmation testing, known as the Gas Chromatography-Mass Spectroscopy test (GC/MS). This method tests for specific drugs, instead of general categories of drugs as with the EMIT. Dr. Evans explained that if a urine specimen first “screened positive for amphetamines, the GC/MS test would only look for methamphetamine and amphetamine ... [i]t looks for those two substances on the basis of molecular structure and the molecular fragmentation pattern they produce in the GC/MS.” Dr. Evans testified the GC/MS test is “considered to be the gold standard and reliable in terms of accurate identification of those two [types of] drugs in [a urine] specim[e]n.”

[¶ 16.] Methamphetamine, a central nervous system stimulant, can initially produce hyperactivity, stimulation, apprehension and confusion. This particular amphetamine is commonly called “speed.” Its effects are generally the same as other amphetamines, only markedly intensified. See The Sloane-Dorland Annotated Medical-Legal Dictionary 447 (1987); People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407, 412 (1971) (noting the potential for violence, paranoia and physical depletion are substantially more severe with methamphetamine). The effects of methamphetamine increase with the purity of the drug. Dr. Evans stated that “[a] highly pure substance is white in col- or ... [a]nd highly pure, meaning about 90 percent pure.” The methamphetamine found in the brown vial in Goebel’s truck was “snow white” in color.

[¶ 17.] The smoking of marijuana, a hallucinogen, alone can lead to impairment. Both Drs. Evans and Pentel agreed that impairment following the smoking of a single marijuana cigarette has been scientifically shown to exist 48 hours after the ingestion. THC, the principal psychoactive ingredient in marijuana, affects the mental thought processes of the individual, resulting in mental dullness, and lack of attention to detail in the post-euphoric phase, or the “down” phase. The Department found that “Dr. Pentel conceded that the articles he relied upon in reaching his conclusions stated that intoxication by marijuana at any age may be associated with appreciable impairment of motor driving skills.” Expert testimony established that even a low dose of marijuana has been shown to result in impairment in driving skills.

[¶ 18.] Both experts in this case agreed that marijuana heightens the effect of dex-troamphetamine, or from amphetamines. In a clinical study performed by Dr. Evans, to monitor the combined effects of marijuana and dextroamphetamine on humans, “the stimulation became excessive. Three of the subjects, out of the 15, became paranoid. Basically, what they did was grab ahold of my arm and said don’t let go, because the trip was too strong for them. The stimulation, the height of the trip, was too strong in terms of heightening the effects.” Thus, when put together, the two drugs can have very potentially dangerous effects on the human body during the “up” time of the “trip.”

[¶ 19.] However, the bigger concern with combined marijuana and methamphetamine use relates to the depressive phase or “down” that follows the high. Dr. Evans testified, and Dr. Pentel agreed, that the stimulant effect of methamphetamine wears off between 8 to 10 hours after ingestion, but this time period would be even shorter when the drug is inhaled, as Goebel so did. After the euphoric effect of the drug wears off, an individual feels extreme fatigue, exhaustion and sleepiness. Dr. Evans testified:

There is very little impairment from [methamphetamine] when you are in the stimulant phase of the drug, in terms of motor impairment. It, actually, in some ways enhances skills, because it pushes off, or it prevents the fatigue from occurring. But once the drug wears off, you go into a depressed state, a depression type of state, and it involves fatigue, exhaustion, sleepiness, a strong urge to go to sleep. That’s where the impairment concern is in terms of methamphetamine and driving.

[¶ 20.] The use of marijuana contributes to the depressive effect of the methamphetamine. Dr. Evans testified that the combination of the two drugs adds to the fatigue or exacerbates the fatigue which follows the euphoric phase of the methamphetamine. Dr. Pentel acknowledged the use of marijuana with methamphetamine was likely to exacerbate fatigue-related impairment. Further, when an individual has become tolerant to methamphetamine, meaning the user must ingest more of the drug to achieve the same effect, the depressive or “down” phase is likewise more marked. Dr. Evans testified, and Dr. Pen-tel agreed, that, in his opinion, Goebel had developed tolerance to methamphetamine, as a user of a tenth of a gram dose, that to an infrequent user could have been lethal.

[¶ 21.] Goebel claims the urine tests utilized in this case cannot conclusively indicate whether he was impaired at the time of the accident. Goebel’s expert, Dr. Pen-tel, testified that [urine] “tests are not designed and are not capable of providing an answer .about the drug having an effect, at the time the urine is collected.” Goebel bases this argument on the “urine catch basin” theory, claiming that “the urine acts as a catch basin for the filtered drugs.” Thus, Goebel argues, there is more drug in the urine, where it would have no impairing effect, than in the blood or brain. Thus, he claims the “ ‘catch basin’ theory does not allow a credible determination of impairment based on the urine test alone.”

[¶ 22.] Dr. Evans did not base his opinion that Goebel’s drug use was a substantial factor in causing the accident solely on the urine test results. To the contrary, Dr. Evans agreed impairment cannot be determined solely from a positive urine drug test. However, he based his opinion on the known pharmacology of methamphetamine and marijuana, their known interactions and the effects they produce as well as the mechanics of Goebel’s accident, all combined with the positive test result. Dr. Pentel did not disagree with Dr. Evans’ methodology.

[¶ 23.] Moreover, our legislature in drafting SDCL 62-4-37 did not require any specific or particular types of tests to be used as a precondition to assert the illegal Schedule I drug use defense. The legislature could have required testing that would show a certain level of illegal drugs, as they have required to invoke the presumption in DWI cases in SDCL 32-23-7, but they have not made such a requirement. See Graham v. Turnage Employment Group, 60 Ark.App. 150, 960 S.W.2d 453, 455 (1998) (affirming the denial of worker’s compensation benefits, and rejecting expert testimony concerning the inability of a urine test to determine whether marijuana had affected a person’s capacity to function, when the legislature had set no specific testing requirements); Brown v. Alabama Electric Co., 60 Ark.App. 138, 959 S.W.2d 753, 756 (1998).

[¶ 24.] The mechanics of the accident support the conclusion that Goebel’s drug use was a substantial factor causing the accident that led to his injuries. Evidence at the scene of the accident indicated Goe-bel had simply “drifted off’ the road into the ditch, because there were no skid marks or any indication he had abruptly applied the brakes. Dr. Evans pointed to a scientific study by Dr. Barry Logan, a Washington toxicologist and member of the American Board of Forensic Toxicology. In this study, which the Department found was “[o]f particular relevance in this case,” Dr. Logan examined the effect of methamphetamine use and driving accidents. He reviewed fatality cases over two years in the Washington State, and found that in 29 cases, the driver tested positive for methamphetamine. Out of those 29 cases, the driver also tested positive for marijuana. Dr. Logan examined the circumstances of the accidents, along with the behavior observed after the accidents and the presence or absence of drug paraphernalia at the scene. The Department found that “[a] number of the accidents in the Logan study involved the driver simply drifting off the road.” Dr. Logan was able to conclude that the use of methamphetamine was a substantial factor in the accidents he reviewed based upon the available evidence, observable behaviors, the presence of drug paraphernalia, positive test results, plus the known pharmacology of methamphetamine. Dr. Evans testified that the facts of this case were consistent with the Logan case study investigation, in the types of accidents in which methamphetamine and marijuana played a factor. His testimony and opinion remained unrefuted at the hearing that Goebel’s use of methamphetamine and marijuana was a substantial factor based upon the known pharmacology of the two drugs, their known interactions and the effects they produce, as well as the mechanics of the accident.

[¶ 25.] Shortly after the accident, Dr. Evans initially concluded that according to the scientific literature available at that time, Goebel had ingested both methamphetamine and marijuana within 72 hours of the collection of the urine specimen. However, by keeping current with scientific literature, in 1998 Dr. Evans was able to narrow the time frame and concluded that Goebel’s consumption of marijuana had actually occurred within 48 hours of the urine test and that the methamphetamine was ingested within 12 hours prior to the urine collection. Dr. Evans explained he was able to amend his previous opinion based on new studies that had been published since 1993. Yet, his opinion remained intact that Goebel’s drug use was a substantial factor in causing his accident.

[¶ 26.] Dr. Evans also explained that the presence of acidic urine (pH) results in a quicker excretion of methamphetamine out of the body system; therefore, an individual will test negative for the drug sooner if his urine is acidic. Goebel’s urine pH level, which was noted at the same time the urine was screened, was 5.0. Dr. Evans testified that this fact makes it even more likely the methamphetamine was ingested 8 to 12 hours before the collection of the urine sample. The collection of the urine took place at approximately 8:00 a.m. on June 18, 1993, three hours after the accident. Thus, according to Dr. Evans’ theory, Goebel most likely ingested the methamphetamine between 8:00 p.m. and midnight on June 17, 1993. Therefore, Goebel’s testimony claiming he inhaled the drug on June 15 was not consistent with the scientific testimony offered by Warner, and ultimately accepted by the Department and the circuit court.

[¶27.] Goebel spends many pages of his appellate brief criticizing Dr. Evans for his revised opinion, claiming that the reason for the “changed testimony” is “because of all the sleep that [Goebel] had within the 72 hours before the accident, Dr. Evans had to change his medical opinion in order to find impairment.” His original conclusion that [Goebel] ingested the drugs within 72 hours, causing impairment, would not fit the facts of this case. As such, Evans simply changes his “expert” conclusions to fit the facts, all the while, of course, “finding impairment.” Basically, Goebel argues Dr. Evans’ opinion should have been rejected by the Department for two reasons: (1) Dr. Evans’ testimony regarding the “window” of ingestion of the illegal drugs changed from 1993 to 1998; and (2) Dr. Evans and the Department failed to consider the amount of sleep Goebel had between the ingestion of illegal drugs and the accident.

[¶ 28.] Both of these arguments fail. We can find no evidence in the record that Dr. Evans provided false testimony just to “fit the facts of this case.” Dr. Evans amended his earlier opinion because new scientific literature directly on point to the facts of this case was published between 1993 and 1998, providing him with a basis, and a duty, to change his opinion based upon this new information. Dr. Evans cannot be criticized for remaining current with the scientific community and literature.

[¶ 29.] Second, while Goebel contests the findings of the Department and the circuit court that his drug use was a substantial factor in his accident, he does not provide any other explanation for the cause of the accident. Goebel strongly criticizes Dr. Evans and the Department for “failing to take into consideration [his] recent sleep patterns,” for according to his sleep log, he slept 16 hours after ingesting the methamphetamine. He argues there could have been no fatigue to “push off’ with the methamphetamine, if he had gotten 16 hours of sleep after taking it.

[¶ 30.] Goebel then reverses course and argues that possibly he was tired. He claims “Dr. Evans, the [Department], and the [c]ircuit [c]ourt all failed to find noteworthy that [Goebel] had been driving for eight and a half hours prior to his accident. Anyone that has ever taken a long trip by automobile knows that eight and a half hours behind the wheel can be exhausting.” The evidence in this case, along with the Department’s 213 findings of fact indicate Goebel was feeling fatigued, based on the known pharmacology of the combination of methamphetamine and marijuana, the lack of skid marks at the scene, and Goebel’s own testimony that he would use methamphetamine to “stay awake.”

[¶ 31.] Whether or not Goebel had slept before the accident really does not change the fact that he still would have been experiencing the “down” stage of drug use. Again, pursuant to SDCL 62-4-37, Goebel’s drug use need not be the only cause of his accident and resulting injuries, it need only be “a substantial factor” in causing the accident and injuries. Therkildsen, 1996 SD 39, ¶ 13, 545 N.W.2d at 837. Even if Goebel was tired due to driving, it would not preclude a finding that his use of methamphetamine and marijuana substantially heightened his fatigue. There is evidence that Goebel’s ingestion of methamphetamine and marijuana impaired his ability to drive and caused the accident. Goebel’s drug use “need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” Id. (citations omitted).

[¶ 32.] Both experts testified live at the worker’s compensation hearing. Thus, deference must be given to the Department which had an opportunity to observe both experts’ demeanors and weigh their credibility. Kurtz v. SCI, 1998 SD 37, ¶ 12, 576 N.W.2d 878, 883 (citing Bonnett v. Custer Lumber Corp., 528 N.W.2d 393, 396 (S.D.1995)) (“Due regard shall be given to the opportunity of the agency to judge the credibility of the witness.”). “Expert testimony is required when the subject matter at issue does not fall within the common experience and capability of a lay person to judge.” Caldwell, 489 N.W.2d at 362 (citing Podio v. American Colloid Co., 83 S.D. 528, 162 N.W.2d 385 (1968)). “In such a case the testimony of an expert is necessary to assist the fact-finder in reaching a decision.” Id.

[¶ 33.] The Department, as the trier of fact in this case, chose to accept Dr. Evans’ opinion in making its decision, and found that “[t]he facts support Dr. Evans’ conclusions,” and concluded that “Dr. Evans’ opinion, to a reasonable degree of scientific probability, [establishes] that [Goebel’s] use of methamphetamine was a substantial factor in the accident on June 18, 1993, is adopted as credible.” “The trier of fact is free to accept all of, part of, or none of, an expert’s opinion.” Johnson v. Albertson’s, 2000 SD 47, ¶ 26, 610 N.W.2d 449 (citing Kester, 1997 SD 127, ¶ 24, 571 N.W.2d at 380 (citing Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988))).

[¶ 34.] The Department was also free to reject Goebel’s testimony, when it found he was not a credible witness. The reviewing agency “is not required to accept the testimony of the claimant and is free to choose between conflicting testimony.” Id. (citing Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 29, 576 N.W.2d 237, 242-43) (citing Petersen v. Hinky Dinky, 515 N.W.2d 226, 235 (S.D.1994)). There is substantial evidence to support the determinations of the Department and the circuit court that Goe-bel was not a credible witness. The Department found that “[Goebel’s] testimony regarding the time he ingested methamphetamine and smoked marijuana is not credible.” Goebel changed his testimony several times during the hearing. In his responses to Warner’s Requests for Admissions, Goebel denied that the brown vial found in his truck after the accident contained methamphetamine. He later admitted the substance in the vial was in fact methamphetamine.

[¶ 35.] Goebel also initially testified that June 15, 1993 was the first time he had ever used methamphetamine. He then testified “I might have used it once before.” Goebel again changed his testimony later in the hearing stating “I don’t really recall how many times I have done it,” and that it would be fair to say that his prior testimony that this had been the second time he ever used methamphetamine, may not have been accurate. Goebel was then able to estimate that he had “snorted” “one-tenth of a gram,” or “just a line.” When asked if he knew how many lines can be used out of a brown vial such as the one in his possession, Goebel replied “[w]ell, you know, it depends upon the size of the line.... You can have a big steak, or you can have a hamburger.” Goebel’s choice of terminology certainly does not indicate a naive or casual user of drugs, and contributed to his lack of credibility. Both Goebel and his wife testified that he used amphetamines to keep himself awake while driving.

[¶ 36.] Thus, he recanted his previous testimony that he had used methamphetamine “just for fun [or recreational use].” Goebel’s own words were “[w]e did [methamphetamine] to keep awake.” The Department found that there were, at a minimum, two occasions when Goebel testified falsely under oath as to material facts — the issues of the timing of his ingestion and possession of methamphetmine, which the Department found to be “clearly relevant ‘material facts in the proceeding.’ ” Pursuant to SDCL 62-7-40, “if the fact finder determines that any person testifying in the proceedings has knowingly [testified] falsely to any material fact in the proceeding, then the fact finder may reject all of the testimony of that witness.”

[¶ 37.] When .Goebel’s own admissions are combined with the results of the urine tests, Dr. Evans, was able to rationalize that Goebel took enough drugs to reach a “high,” enough drugs to obtain a stimulant effect, because “[h]e had an active amount of both drugs” in his system after the accident. Because “what goes up must come down,” it can be inferred that Goebel was beginning to experience the “down” phase of the drugs at around the time of his accident. In fact, he testified that just outside of Grand Island he stopped to use the rest area, and at that time he was feeling “slightly” tired, but his “goal was to get to Grand Island.”

[¶ 38.] Goebel, who had been a truck driver “off and on” since 1981, knew DOT prohibited the use of controlled substances while operating a commercial vehicle such as a semi-truck. Yet Goebel disregarded that policy, and the law, when he took methamphetamine and marijuana before driving across the country. He cannot now recover from Warner for injuries he sustained because of his own willful misconduct, when there is substantial evidence in this case to support the conclusion that his drug use was a substantial factor in causing his unfortunate accident.

[¶ 39.] The Department found that there was “no contrary expert opinion” as to the cause of the accident and found Goebel’s drug use was indeed a substantial factor in causing his truck accident and injuries. The circuit court affirmed this finding. Given the Department’s ability to judge the credibility of the witnesses in this case, we cannot say it was clearly erroneous in denying Goebel’s worker’s compensation benefits for his trucking accident. The findings of the Department that Goebel was lacking in credibility were not clearly erroneous, as we find substantial evidence to support its conclusions. The Department, as the trier of fact, was free to disregard Goebel’s testimony, and entitled to give greater weight to Dr. Evans’ testimony and opinions.

[¶ 40.] The decision of the Department is affirmed.

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

      . Sergeant Ron Ochsner of the Hall County Sheriffs department testified that according to Nebraska law, if it appears an accident will result in "a fatality or [you] feel you’re going to have one you need to draw blood." According to Ochsner, Goebel's injuries "were quite serious to the point where I felt we possibly could have a fatality."

      . The Enzyme Multiplied Immunoassay Technique (EMIT) is a standard screening method utilized by laboratories to ascertain if a urine sample contains any illegal substances. 47 Am.Jur. POF 3d 203, § 8. The test "does not measure the amount of drugs in the urine directly, but instead measures the reaction of an enzyme to a specified drug.” See Lahey v. Kelly, 71 N.Y.2d 135, 524 N.Y.S.2d 30, 518 N.E.2d 924, 927 (1987) (discussing the reliability of the EMIT drug test to determine whether prison inmates had used illegal narcotics). "The system works on a biochemical principle. Certain antibodies are added to the urine specimen and the reactions which result produce a substance which can be compared to known values through a device known as a photometer. Within 90 seconds the photometer prints on the result card whether the sample is positive or negative for the drug in question.” Id.

      . In fact, surveys have rated the GC/MS as "nearly infallible.” See Taylor v. O’Grady, 888 F.2d 1189, 1192 n. 4 (7th Cir.1989) (citing Note, Employee Drug Testing - Balancing

        the Interests in the Workplace: A Reasonable Suspicion Standard, 74 Va.L.Rev. 969, 989 and nn.127-130). The use of this test greatly reduces the chance of error in drug testing procedures. See Comment, Drug Testing of Private Employees, 16 U.Balt.L.Rev. 552, 556 (Spring 1987) (stating the GC/MS test is widely acknowledged as being more reliable). Moreover, the EMIT test, coupled with a confirmatory second test, such as the GC/MS, provides sufficiently reliable drug test results. See Lahey, 524 N.Y.S.2d 30, 518 N.E.2d at 928 (citing Spence v. Farrier, 807 F.2d 753, 756 (8th Cir.1986) ([stating] EMIT test, with a confirmatory second EMIT or other test, contains sufficient indicia of reliability to provide evidence of drug use) (other citations omitted)). Goebel does not challenge the accuracy of the tests themselves, but disputes their lack of ability to determine level of impairment.

      . Dextroamphetamines and methamphet-amines are both amphetamines. Dr. Evans explained that amphetamine is "much more potent” than dextroamphetamine. Dr. Evans conducted several clinical studies to evaluate the impairment effects of marijuana and dextroamphetamine “in humans with regards to psychomotor, mental motor, as well as the emotional or psychological state of the individual, the acute effects of that.” Dex-troamphetamine was used in the study because Dr. Evans "could not ethically and appropriately use methamphetamine ...," as it is not a drug made by a pharmaceutical manufacturer in this country. Instead, it is "made in a bathtub or in crack houses.”

      . Dr. Evans performed this study as part of his thesis for his Ph.D., in 1974 in conjunction with the Indiana University School of Medicine and Toxicology.

      . We know from studying Goebel’s driver's log, he was off-duty from 7:00 pm to 8:00 pm on June 17. He also stopped at midnight in North Platte, Nebraska, to shower.

      . While Goebel's accident occurred in Nebraska, this Court notes this type of drug possession is illegal in South Dakota. SDCL 22-42-5 provides that possession of a controlled substance, such as methamphetamine, is a Class 4 felony. Possession of marijuana is also prohibited under SDCL 22-42-6. SDCL 22-42-15 provides:
      "[a]ny person who intentionally ingests, inhales, breathes or otherwise takes into the body any substance, except alcoholic beverages as defined in § 35-1-1, for purposes of becoming intoxicated, unless such substance is prescribed by a practitioner of the medical arts lawfully practicing within the scope of their practice, is guilty of a Class 1 misdemeanor.”
      Finally, SDCL 22-42A-1 to 3 provides the use or possession of drug paraphernalia as a misdemeanor. Nebraska has nearly identical criminal statutes concerning controlled substances as does South Dakota.


author: CADY, Justice.

text:
    UNITED FIRE AND CASUALTY CO., Plaintiff, v. IOWA DISTRICT COURT FOR SIOUX COUNTY, Defendant.
    No. 98-1938.
    Supreme Court of Iowa.
    June 1, 2000.

      Ned A. Stockdale of Fitzgibbons Law Firm, Estherville, for plaintiff.
    William Kevin Stoos of Klass, Stoos, Stoik, Mugan, Villone & Phillips, L.L.P., Sioux City, Scott W. Dunn of Flanders, Stover, Elsberg & Ellis, L.L.P., Boulder, Colorado, and James R. Christoph, McCormick & Christoph, P.C., Boulder, Colorado, for defendant.
   CADY, Justice.

This action to declare coverage under an automobile policy is before us on a petition for writ of certiorari filed by the insurer after the district court granted a motion permitting the insured to amend a pleading to allege that an exclusion under a policy of insurance is void under the law of the State of Colorado. In a prior appeal of the action, we held the insureds failed to prove Colorado law prohibited the exclusion. We sustain the writ and remand the ease to the district court for entry of judgment for the insurer.

I. Background Facts and Proceedings.

Mabel and Victor Victoria purchased an automobile liability policy from United Fire and Casualty Company while they were residents of Iowa. The policy provided coverage from October 29,1993 to April 29,1994.

The Victorias moved to Colorado in January 1994. They subsequently informed United they intended to change insurance companies.

On April 25, 1994, the Victorias obtained automobile coverage with State Farm Mutual Automobile Insurance Company through an agent in Colorado. Three days later, on April 28, 1994, Mabel was tragically killed in an automobile accident while a passenger in her car. Mabel’s son, Roger, was driving the vehicle.

The Victorias sought coverage under both of the policies of insurance. United eventually denied coverage under their policy and filed a declaratory judgment action seeking a legal determination that it had no obligation to provide coverage. Among other grounds, United asserted that the “family member exclusion” under the policy precluded family members from recovering. Although the trial court initially limited the action to other grounds by United, the “family member exclusion” claim was tried to the court with the consent of the parties. The Victorias argued at trial that Colorado law governed the issue and did not permit such exclusion. It offered witnesses on the issue and submitted legal authority in support of its position.

The district court determined the United policy must be reformed under Colorado law and deleted the “family member exclusion.” United appealed from the ruling.

In deciding the case on appeal, we first recognized our prior cases upholding the “family member exclusion clause” as well as the presumption that foreign law is the same as Iowa law unless proved otherwise. See United Fire & Cas. Co. v. Victoria, 576 N.W.2d 118, 121 (Iowa 1998). We then found “the Victorias had failed to prove” Colorado law would prohibit the exclusion, even though the record revealed witnesses at trial who suggested otherwise. Id. Although we affirmed the district court on some of the claims of error raised by United, we concluded the district court erred in ordering reformation to remove the family exclusion. Id. We therefore reversed the decision and remanded it “for further proceedings.” Id. The procedendo subsequently issued directed the district court to “proceed in the manner required by law and consistent with the opinion of the court.”

On remand, the Victorias moved to amend their pleadings to specifically allege that Colorado law applied to the case and that the “family member exclusion” was unlawful under Colorado law. The district court granted the motion and ordered a new hearing. It determined the Victorias should be given a new opportunity to prove that Colorado law declares the exclusion unlawful because the issue was merely tried by consent at the first trial without a full opportunity to plead and prove Colorado law. The district court was convinced that Colorado law did not permit the exclusion and that the Victorias should be given another opportunity to make their record. It concluded that it had discretion to permit the amendment because the remand did not specify that the case should be dismissed.

United filed its petition for writ of cer-tiorari. It alleged the district court exceeded its authority by granting the amendment and by failing to dismiss the case on remand.

II. Scope of Review.

Certiorari is a law action to determine whether a tribunal has exceeded its authority or otherwise acted illegally. See Iowa R.Civ.P. 306; Medina v. Iowa Dist. Ct., 552 N.W.2d 140, 141 (Iowa 1996). The nature of the issues in a certiorari action determine our review. Polk County Sheriff v. Iowa Dist. Ct., 594 N.W.2d 421, 423 (Iowa 1999). Our review of actions for declaratory relief is governed by the manner in which the action was tried in district court. See Smith v. Bertram, 603 N.W.2d 568, 570 (Iowa 1999). This declaratory judgment action was at law. Our review, therefore, is for correction of errors at law. Iowa R.App.P. 4; Hancock v. City Council, 392 N.W.2d 472, 473 (Iowa 1986).

III. Discussion.

It is a familiar legal principle that an appellate decision becomes the law of the case and is controlling on both the trial court and on any further appeals in the same case. Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632 (Iowa 1991). Like res judicata, the law of the case doctrine is founded on a public policy against reopening matters which have been decided. Wolfe v. Graether, 389 N.W.2d 643, 651 (Iowa 1986) (citing 46 Am.Jur.2d Judgments § 400, at 568 (1969)). Thus, issues decided by an appellate court generally cannot be reheard, reconsidered, or relitigated in the trial court. 5 C.J.S. Appeal and Error § 975, at 476-77 (1993). The appellate court decision is final as to all questions decided and the trial court is obligated to follow that decision. Id.

The doctrine, however, is not absolute or inflexible. We have recognized at least two situations when the law of the case doctrine does not apply. Springer, 475 N.W.2d at 632. The first exception is when the law has been changed by legislative enactment. Id. The second exception is when the controlling law has been clarified by judicial decisions following remand. Id.

These exceptions have no application to the facts of this case. However, we also recognize the doctrine is inapplicable when different facts are presented on retrial or other proceedings on an issue after remand. Schnebly v. Baker, 221 N.W.2d 739, 740 (Iowa 1974). Yet, this exception applies where the right to a new trial or similar further proceeding survives an appeal. See 5 C.J.S. Appeal and Error § 976, at 480.

In this ease, no right of retrial survived the remand. The application of the “family member exclusion” was litigated by consent in the trial court prior to the first appeal. See Iowa R .Civ.P. 106 (issues not raised in pleadings but tried by express or implied consent of parties shall be treated as if they have been raised in the pleadings); Rouse v. Rouse, 174 N.W.2d 660, 666 (Iowa 1970) (issues may be tried by consent, though not specifically presented in the pleadings). United placed the issue squarely before the trial court. See Victoria, 576 N.W.2d at 121. Moreover, our law recognizes the “family member exclusion” to be valid. Walker v. American Family Mut. Ins. Co., 340 N.W.2d 599, 601-03 (Iowa 1983). Thus, the Victorias were obligated to prove the application of Colorado law. See Powell v. Khodari-Intergreen Co., 334 N.W.2d 127, 131 (Iowa 1983) (party asserting foreign law’s applicability bears burden of proving the contents of that law). The Victorias did in fact present evidence on the issue at trial and even declined an invitation by the trial court to present additional information. We found on appeal this evidence failed to prove Colorado law would prohibit the exclusion. Victoria, 576 N.W.2d at 121. There was no further issue to be litigated on remand.

Generally, the district court is vested with discretion to direct the course of the case following remand absent specific instructions. See 5 C.J.S. Appeal and Envr § 978, at 481-83. Thus, when remand is general, the district court may take action consistent with the appellate decision. See Ronna v. American State Bank, 215 Iowa 806, 815, 246 N.W. 798, 802 (1933). In this case, however, the trial court had no discretion but to enter judgment for United under the doctrine of the law of the case. It was error to permit an amendment to the pleadings to relitigate an issue previously resolved on appeal. See 5 C.J.S. Appeal and Error § 991, at 496-97.

WRIT SUSTAINED.


author: STREIT, P.J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Torrey T. BROWN, Defendant-Appellant.
    No. 99-99.
    Court of Appeals of Iowa.
    Feb. 9, 2000.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
    Heard by STREIT, P.J., and HECHT and VAITHESWARAN, JJ.
   STREIT, P.J.

“I might have been a gold-fish in a glass bowl for all the privacy I got.” Saki, The Innocence of Reginald (1904), in The Quotable Lawyer, 252 (David Shrager & Elizabeth Frost eds., 1986). Such was the cry of defendant, Torrey Brown, when his host consented to the search of the guestroom in which he was staying. The officers, searching for a gun at the residence, discovered Brown’s large stash of crack cocaine in his girlfriend’s jacket. Brown claims the search violated the Fourth Amendment and the trial court erred in denying his motion to suppress. Because Brown’s host had authority to consent to the search and Brown failed to have a legitimate expectation of privacy in his girlfriend’s jacket, we affirm his conviction.

I. Background Facts & Proceedings.

In the early morning hours of a June day, Lorenzo Dollison, upset with his house guests, left his Waterloo apartment and trudged down to the local police station. At the station, he told the police a woman just brought a gun into his home and left, with the promise of returning with more. Dollison asked for help in removing the weapon. After being assured that officers were on their way, Dollison returned home.

Shortly thereafter, Dollison greeted the responding officers outside his home and again recounted his story of the weapon. After confirming Dollison was the only tenant, officers accompanied him into the apartment. Dollison told the officers the weapon was in a certain bedroom. When Dollison opened the door to the bedroom, the officers found the defendant, Brown, and his girlfriend, Krista Grant, lying naked on the bed. Brown and Grant had recently arrived in Waterloo from Chicago. Dollison had allowed Brown and Grant to stay with him until they could find a place of their own. In exchange for Dollison’s hospitality, Brown gave him some crack cocaine and a small amount of money. The couple quickly wore out their welcome, and Dollison requested the couple leave on two separate occasions.

The officers ordered the couple to dress and told them they were looking for a gun. While dressing, Grant hid the crack cocaine in her jacket and, at the behest of Brown, hid the ammunition clip of the rifle in her underwear. The couple admitted seeing the weapon and suggested it may be between the bed’s mattress and box spring. The couple proceeded to lift the mattress, but an officer ordered them to stop and told them to leave the room. In searching the room, an officer picked up Grant’s jacket and noticed it was unusually heavy and contained a large bulge in one pocket. Fearing it was the weapon, the officer unzipped the pocket and discovered the crack cocaine. The officer then directed the couple to get their personal belongings out of the room. In picking up their personal items, Brown told Grant numerous times to get her jacket from the officer. She denied it was her jacket, and the couple left the room leaving the jacket with the officer. The officer arrested the couple for possession of the crack cocaine. The gun, a .22 caliber rifle, was later discovered under the bed.

Brown and Grant later confessed to possessing the crack cocaine and to knowing the location of the rifle. The State charged Brown with possession with intent to deliver more than five grams but less than fifty grams of crack cocaine while in the immediate possession of a firearm, a drug tax stamp violation, and possession of a firearm by a felon. See Iowa Code §§ 124.401(l)(a), 124.401(l)(e), 453B.12, 724.26 (1997). Brown sought to suppress the admission of the crack cocaine, claiming the officers violated his Fourth Amendment right to be free from unreasonable search and seizure. The trial court denied the motion to suppress, finding the discovery of the crack inadvertent and that Brown acquiesced to the search. Brown later waived his right to a jury trial and agreed to submit the case to the court on stipulated facts. The court found him guilty of possession with intent to deliver crack cocaine while in immediate possession of a firearm and sentenced him accordingly.

Brown now appeals, claiming the trial court erred in denying his motion to suppress and there was insufficient evidence he was in immediate possession of a firearm.

II. The State’s Failure to Raise Brown’s Expectation of Privacy.

Brown claims the State is es-topped from arguing he lacked a legitimate expectation of privacy in the room or the jacket, because it did not address the issue in the motion to suppress. The State can lose its right to claim a defendant had no legitimate expectation of privacy “when it has failed to raise such questions in a timely fashion during the litigation.” Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38, 44 (1981). The State, however, in its closing comments on the motion to suppress stated, “Defendant here has no standing, no privacy issue.” Defense counsel responded, “The notion that there’s no standing ... escapes me.” Although the State did not expound upon its statement that Brown lacked a legitimate expectation of privacy, it alerted both defense counsel and the court of the issue. Simply because the district court did not rely on expectation of privacy in denying the motion to suppress does not prevent the State from arguing it on appeal. See United States v. Elwood, 993 F.2d 1146, 1152 & n. 26 (5th Cir.1993). Because the State’s brief argument regarding Brown’s expectation of privacy was minimally sufficient, we will address whether Brown had a legitimate expectation of privacy in the room and in his girlfriend’s jacket.

III. The Search.

Brown first contends the search of the bedroom was unreasonable under the Fourth Amendment. He claims as a overnight guest he had a privacy interest and the officers were not operating under any legitimate exception to the warrant requirement.

A. Standard of Review. When assessing an alleged violation of a constitutional right, we review de novo the totality of the circumstances as shown by the entire record. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). We consider both the evidence presented during the suppression hearing and that introduced at trial. State v. Jackson, 542 N.W.2d 842, 844 (Iowa 1996).

B. The Bedroom. Brown contends the search of the bedroom violated the Fourth Amendment because he had a privacy interest in the bedroom and the owner of the home had no authority to consent to the search. The Fourth Amendment to the United States Constitution secures the right of the people to be free from unreasonable government searches. U.S. Const, amend. IV. The Fourth Amendment, however, is not a general societal protection, but rather “a personal right that must be invoked by an

individual.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 473, 142 L.Ed.2d 373, 379 (1998). The extent of protection it affords an individual depends largely on the location of the person seeking its safeguards. Id. at 88, 119 S.Ct. at 473, 142 L.Ed.2d at 379. The capacity to invoke the protections of the Fourth Amendment depends “upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401 (1978). It is incumbent upon the defendant to show he had a legitimate expectation of privacy in order to litigate the lawfulness of the government search. State v. Osborn, 200 N.W.2d 798, 803 (Iowa 1972). A legitimate expectation of privacy in an invaded place, however, is not so narrowly construed as to mean only a person’s home. Rather, even an overnight guest has a legitimate expectation of privacy in the host’s home. Minnesota v. Olson, 495 U.S. 91, 99-100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85, 95 (1990). That expectation of privacy, however, is applicable only to the unwarranted actions of government actors. It does ensure the guest’s “possessions will not be disturbed by anyone but [the] host and those [the] host allows inside.” Id. at 99, 110 S.Ct. at 1689, 109 L.Ed.2d at 94. Thus, an overnight guest’s legitimate expectation of privacy does not vitiate the homeowner’s ability to consent to a search of his home. See United States v. Oates, 173 F.3d 651, 656 (8th Cir.1999); United States v. Wright, 971 F.2d 176, 180 (8th Cir.1992) (“[The homeowner] possessed authority to consent to a search of his own home, including the guest bedroom where [defendant] spent the evening.”); United States v. Salinas-Cano, 959 F.2d 861, 863 (10th Cir.1992); United States v. Isom, 588 F.2d 858, 860-61 (2d Cir.1978) (“As the lawful tenant, [the homeowner] clearly had authority to consent to a search of her premises, even though a ‘guest’ was also present.”). A consent search of a home is only proper if the police reasonably believed the person granting the police permission to search had the authority to do so. See Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 159-60 (1990).

Although Brown had a legitimate expectation of privacy as an overnight guest, Dollison’s consent countermands that privacy interest. Dollison’s permission to search his apartment is undisputed. See Oates, 173 F.3d at 656. Dollison was the sole tenant on the lease. See id Dol-lison had free access to all rooms in his apartment. See id. The room searched was normally Dollison’s private bedroom. Dollison requested Brown leave the residence, and he failed to comply. See Oates, 173 F.3d at 656; Isom, 588 F.2d at 860-61 (“[E]ven if appellant had some right, doubtful at best, as a ‘licensee’ to countermand [the homeowner’s] consent to the search, [the homeowner] had undoubtedly revoked the ‘license’ by asking appellant to leave her apartment.”). Under the totality of the circumstances, we find Dollison had the authority to consent to the search of the bedroom in which Brown was located.

C. The Jacket. Brown next claims the trial court erred in denying his motion to suppress because he had a legitimate expectation of privacy in the searched jacket and the government was not operating under an exception to the warrant requirement.

Brown bears the burden of proving he had a legitimate expectation of privacy in his girlfriend’s jacket. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641 (1980). Circumstances indicating an accused has a legitimate expectation of privacy in another’s personal items include: (1) the nature of the relationship between the accused and the third party, (2) whether a bailor-bailee relationship existed between the parties, (3) the frequency with which that bailor-bailee relationship existed, (4) the accused’s right to exclude others from accessing the third party’s items, (5) the accused’s possessory interest in the item seized, and (6) whether the accused expressed a subjective expectation of privacy in the area searched. Id. at 105, 100 S.Ct. at 2561, 65 L.Ed.2d at 641-42.

In applying the totality of circumstances surrounding this unique ease, -we find Brown failed to show he had a legitimate expectation of privacy in his girlfriend’s jacket. First, the relationship between Brown and Grant is unclear. They held themselves out as a couple, but Brown failed to offer evidence as to the nature of their relationship. In Rawlings, the Court found the defendant had a minimal expectation of privacy in his girlfriend’s purse as they had only recently become acquainted. Id. As it is Brown’s burden to show a legitimate expectation of privacy in Grant’s jacket, failure to detail the nature of his relationship with Grant does little to establish his claim. Second, although there was evidence that Grant had secreted Brown’s drugs on previous occasions, the series of events particular to this case does not establish a true bailor-bailee relationship. Brown stated in his confession, “I think the crack was out and I think Krista put it in her coat.” Brown did not ask Grant to take charge of his drugs. Grant acted of her volition, thus negating any bailor-bailee relationship. There is nothing to indicate Brown had a right to exclude others from accessing the jacket. In fact when given the opportunity to assert some type of privacy, he demanded Grant get her jacket and when she refused he left it with the officer. Finally, placing so much crack cocaine in a jacket pocket that it causes it to noticeably bulge is not the type of precaution normally undertaken to maintain privacy. Id. Thus, weighing the totality of the circumstances, we find Brown failed to meet his burden of showing he had a legitimate expectation of privacy in his girlfriend’s coat. See United States v. Kelly, 46 F.Supp.2d 624, 627 (E.D.Tex.1999) (ruling defendant had no expectation of privacy in a friend’s purse); People v. Whisler, 724 P.2d 648, 649-50 (Colo.1986) (ruling defendant had' no expectation of privacy in his girlfriend’s suitcase); Gilbert v. State, 159 Ga.App. 326, 283 S.E.2d 361, 363 (1981) (ruling defendant had no expectation of privacy in companion’s jeans); People v. Rielly, 190 A.D.2d 695, 593 N.Y.S.2d 275, 277 (N.Y.App.Div.1993) (ruling defendant had no expectation of privacy in his son’s backpack); People v. McCary, 173 A.D.2d 856, 570 N.Y.S.2d 842, 844 (N.Y.App.Div.1991) (ruling defendant had no expectation of privacy in companion’s cosmetic case); State v. Hudson, 103 N.C.App. 708, 407 S.E.2d 583, 589 (1991) (ruling defendant had no expectation of privacy in friend’s purse). Brown would not have had an expectation of privacy in whatever place Grant happened to choose to hide the contraband, such as her underwear or coat. The expectation does' not somehow attach itself to a particular item of property and then travel with it wherever it may land. Because Brown failed to show a legitimate expectation of privacy, we need not reach the substance of his alleged constitutional violation. The trial court properly denied Brown’s motion to suppress.

IV. The Sufficiency of the Evidence.

Finally, Brown contends there was insufficient evidence to support the court’s finding he was in immediate possession or control of a firearm pursuant to Iowa Code section 124.40Í(l)(e).

A. Standard of Review. We review sufficiency of the evidence claims for errors at law. Iowa RApp.P. 4. We are bound by the jury verdict unless the verdict is not supported by substantial evidence. State v. Lewis, 514 N.W.2d 63, 65-66 (Iowa 1994). In making this determination, we must consider all the evidence in the light most favorable to the State. State v. Peck, 539 N.W.2d 170, 172 (Iowa 1995). We accept all legitimate inferences that may fairly and reasonably be deducted from the evidence. State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996). Evidence is substantial if it could convince a rational fact finder the defendant is guilty beyond a reasonable doubt. Id. Direct and circumstantial evidence are equally probative; however, evidence that merely raises suspicion, speculation, or conjecture is insufficient. See id.

B. The Merits. Iowa Code section 124.401(l)(e) provides:

A person in the immediate possession or control of a firearm while participating in a violation of this subsection shall be sentenced to two times the term otherwise imposed by law, and no such judgment, sentence, or part thereof shall be deferred or suspended.

Our supreme court has previously defined and noted a distinction between the concepts of “immediate possession” and “immediate control.” See State v. Eickelberg, 574 N.W.2d 1, 4 (Iowa 1997). In Eickel-berg, the court stated: ”

[Wjhile immediate possession, as found in section 124.401(l)(e), may require the firearm to be located on the defendant’s person, immediate control necessitates only that the firearm be in such close proximity to the defendant as to enable him to claim immediate dominion over the firearm.

Id. (emphasis added). Brown admitted to knowing the location of the gun both when officers first arrived and later in his confession. In fact, he ordered his girlfriend to hide the ammunition clip to the rifle in her underwear. Based on this evidence, it was reasonable for the court to conclude Brown had knowledge of the weapon and it was within his immediate control. The sentence enhancement is affirmed.

AFFIRMED.

      . In the course ol Dollison's narrative at the police station, there was a miscommunication as to the type of gun involved. Dollison said he told the officer the gun was a .22 caliber rifle. The officer, in dispatching a unit to Dollison's apartment, described the weapon as a .22 caliber pistol.

      . Traditionally, the rubric of "standing” was used to determine if a defendant could litigate the lawfulness of a government search. The term “standing,” however, is now viewed with disfavor by the United States Supreme Court as it improperly connotes an abandoned notion of law. See Minnesota v. Carter, 525 U.S. 83, 87, 119 S.Ct. 469, 472, 142 L.Ed.2d 373, 379 (1998). Although lacking an easily recognizable shorthand term, the appropriate standard in determining whether a defendant may litigate a search is whether the defendant "personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Id. at 88, 119 S.Ct. at 472, 142 L.Ed.2d at 379 (citing Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

      . Brown asserts the search violated both the Fourth Amendment to United States Constitution and article I, section 8, of the Iowa Constitution. Because, "the language of those clauses is substantially identical and we have consistently interpreted the scope and purpose of article I, section 8, of the Iowa Constitution to track with federal interpretations of the Fourth Amendment” we will address his arguments jointly. State v. Showalter, 427 N.W.2d 166, 168 (Iowa 1988).


author: GILBERT, Justice.

text:
    Catherine A. MADSON, petitioner, Appellant, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a Delaware Corporation, Respondent.
    No. CX-99-1508.
    Supreme Court of Minnesota.
    June 15, 2000.

      Dennis Paul Pelowski #245744, Minneapolis, for appellant.
    Kathleen M. Mahoney #66588, David M. Wilk #222860, Oppenheimer, Wolff & Don-nelly, L.L.P., St. Paul, for respondent.
   OPINION

GILBERT, Justice.

This appeal arises from a lawsuit filed by appellant Catherine Madson against Minnesota Mining and Manufacturing Company (3M) alleging claims of discrimination and retaliation in violation of the Minnesota Human Rights Act. Review of the underlying claims is not before this court. We granted review to decide the narrow question of whether appellant’s Minn. R. Civ. P. 60.02(a) and (f) motion to vacate judgment was “proper” under Minn. R. Civ.App. P. 104.01, subd. 2 and thus tolled the 60-day time limitation for appeal.

Appellant worked for 3M on and off for 19 years. In 1993, she was promoted to the position of Customer Service Representative at 3M. Sometime in March of 1996, appellant resigned. There is a significant dispute over exactly when appellant resigned from 3M. However, two relevant facts are not in dispute. March 5, 1996 was appellant’s last day physically present at the 3M plant and a letter signed by Madson’s supervisor, Alan Reiter (the Reiter letter), confirms that 3M received actual notice of Madson’s resignation on March 8, 1996, during a phone conversation between Madson and Reiter.

On March 6, 1997, appellant filed a charge against 3M with the Minnesota Department of Human Rights (MDHR). On March 27, 1998, appellant commenced a civil action against 3M alleging gender and marital status discrimination and retaliation under the Minnesota Human Rights Act. See generally Minn.Stat. § 363.03, subds. 1, 7 (1998). After the close of discovery, 3M filed a motion for summary judgment arguing, in part, that appellant’s claims with the MDHR, filed one year and one day after her last day physically present at work, were barred by the one-year statute of limitations covering discrimination claims. See generally Minn.Stat. § 363.03, subd. 3 (1998).

In her memorandum opposing summary judgment, appellant argued that her claims were not time-barred because the statute of limitations runs from the date of her official resignation notification to her employer, rather than from the date she was last physically present on the job. In the memorandum, appellant’s original counsel listed under the heading “Documents Relied Upon,” the March 8, 1996, Reiter letter. It was also discussed in the memorandum. However, that document did not become part of the record. Appellant argues that the omission of the Reiter letter was a result of her first counsel’s inadvertence.

Appellant changed counsel on May 3, 1999. Shortly thereafter, appellant’s new counsel realized that the Reiter letter had been omitted from the record submitted to the trial court in the opposition memorandum. By a letter dated May 18, 1999, appellant requested that the district court accept supplemental materials in consideration of the motion. The court granted summary judgment for 3M, which was entered on May 19, 1999, and sent a letter to appellant on May 20,1999, stating that the record for summary judgment was closed and that appellant could move the court to reopen it.

On May 28, 1999, appellant moved to vacate judgment pursuant to Minn. R. Civ. P. 60.02(a) and (f). Subdivisions (a) and (f) of Rule 60.02 allow the district court to relieve a party from judgment and “order a new trial or grant such other relief as may be just” where there is “[mjistake, inadvertence, surprise, or excusable neglect” or for “[a]ny other reason justifying relief from the operation of the judgment.” Appellant specifically asked that the court reopen the record, admit the omitted letter and then “determine” that there is a material fact in dispute, the date of appellant’s resignation, which cannot be resolved by summary judgment. On June 18, 1999, the district court denied appellant’s motion, reasoning that it had already considered other evidence from appellant’s brief and deposition that suggested that the date of resignation was March 8, 1996. The district court held that the Reiter letter, confirming March 8, 1996, as the date appellant notified her supervisor at 3M of her resignation, was of “no consequence” because it is the date that appellant was last physically present at 3M, March 5, 1996, that is determinative of the statute of limitations issue. Appellant filed the June 18, 1999 order on August 17, 1999 and it is uncontested that appellant served notice of the filing of the district court’s order on August 17,1999.

On September 1, 1999, appellant sought review in the Minnesota Court of Appeals of both the summary judgment entered on May 19, 1999 and the order filed August 17, 1999, denying appellant’s Rule 60.02(a) and (f) motion. By order opinion, the court of appeals held that it lacked jurisdiction to review the summary judgment decision because the time for appeal lapsed on July 19, 1999, 60 days after the summary judgment was entered. See Madson v. Minnesota Mining & Mfg. Co., No. CX-99-1508, slip op. at 2 (Minn.App. Oct. 3, 1999) (citing Minn. R. Civ.App. P. 104.01, subd. 1; Minn. R. Civ.App. P. 126.02 (providing that the time to file notice of appeal may not be extended by appellate courts)). The court of appeals noted that the running of the time for appeal can be tolled under Minn. R. Civ.App. P. 104.01, subd. 2 if any party serves and files a “proper and timely” motion of a type specified in the rule, which includes timely motions under Rule 60. See Madson, slip op. at 1.

The court of appeals acknowledged that there is no dispute here that appellant’s Rule 60.02 motion was “timely.” See Mad-son, slip op. at 2. The court held however, that appellant’s 60.02 motion was not “proper” because Rule 60.02 does not allow for the “introduction of evidence that was known to exist before judgment was entered.” Madson, slip op. at 2 (citing Sullivan v. Spot Weld, Inc., 560 N.W.2d 712, 716 (Minn.App.), rev. denied (Minn. Apr. 24, 1997)). The court of appeals also dismissed the appeal of the order filed August 17,1999, because it held that an order denying a motion to vacate a final judgment is generally not separately appeal-able and appellant had failed to demonstrate a basis for appeal under Minn. R. Civ.App. P. 103.03. See Madson, slip op. at 3.

Resolution of the jurisdictional issue before us requires interpretation of Minn. R. Civ.App. P. 104.01. The interpretation of the Rules of Civil Appellate Procedure presents a question of law; therefore, our review is de novo. See Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn.1996). Further, because the dates governing the jurisdictional issue are not in dispute, we review the jurisdiction question de novo. See Marzitelli v. City of Little Canada, 582 N.W.2d 904, 905 (Minn.1998).

An amendment to Rule 104.01, effective on January 1, 1999, and therefore, applicable to this case, provides a 60-day period in which an appeal may be taken from either an entry of judgment or an appeal-able order. See Minn. R. Civ.App. P. 104.01, subd. 1, Advisory Comm. Cmt. - 1998 Amendment. The 1998 amendments to Rule 104.01 also added a new subdivision that enumerated the specific posttrial motions that would toll the time for appeal, which include appellant’s Rule 60.02(a) and (f) motion:

[I]f any party serves and files a proper and timely motion of a type specified immediately below, the time for appeal of the order or judgment that is the subject of such motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding. This provision applies to a proper and timely motion: * * * (e) for relief under Minn. R. Civ. P. 60 if the motion is filed within the time for a motion for new trial-

Minn. R. Civ.App. P. 104.01, subd. 2 and Advisory Comm. Cmt. - 1998 Amendment (emphasis added). The new subdivision 8 of Rule 104.01 provides that any notice of appeal filed before the disposition of one of the six listed posttrial motions “is premature and of no effect.” Minn. R. Civ.App. P. 104.01, subd. 3, Advisory Comm. Cmt. - 1998 Amendment. A new notice of appeal has to be filed after service of notice of filing of the order disposing of the outstanding motion within the time prescribed to appeal the underlying order or judgment. See id.

These new subdivisions of Rule 104.01 were designed to solve the problem we confronted in Marzitelli. See generally Marzitelli, 582 N.W.2d at 904. Under the pre-1999 version of Rule 104.01, the district court’s jurisdiction to decide posttrial motions terminated when the time for appeal ran, even if the motion had not been decided. See id. at 907. Even if the posttrial motion was not yet decided, parties had to file a timely appeal and then apply to the appellate court for a stay of the appeal to allow time for the district court to decide the motion. See id. The reason for the changes to Rule 104.01 was to “simplify practice” in the hopes of creating “less confusion” about the timing of appeals. Minn. R. Civ.App. P. 104.01, Advisory Comm. Cmt. - 1998 Amendment. Further, the purpose of the new subdivisions is twofold: “to make it clear that an appeal is not necessary until the proper motion is decided, and to avoid a party’s erroneous assumption that an improper or unauthorized motion would prevent the running of an appeal deadline.” Id.

Neither party disputes the timeliness of appellant’s Rule 60.02 motion. However, 3M argues that appellant’s motion was not “proper” for two reasons. First, relying on Sullivan, 560 N.W.2d at 716, 3M argues that the motion inappropriately sought to introduce evidence that appellant and her counsel knew of prior to the entry of summary judgment. Thus, 3M argues that the motion is not “proper” because it is the incorrect motion to accomplish appellant’s intended purpose. Second, 3M argues that the motion is a thinly disguised motion to reconsider the issue of the legal question for determining the date for constructive discharge. Appellant argues that based on her attorney’s inadvertence, the proper case authority applicable to the determination of the propriety of her Rule 60.02(a) motion is the four-part showing we delineated in Finden v. Klaas, 268 Minn. 268, 271, 128 N.W.2d 748, 750 (1964). Both of these approaches associate the standard for determining whether a motion is “proper” with the merits of the underlying motion.

However, when we look to the plain language of and the purpose behind the 1998 amendments to Rule 104.01, we conclude the test for a “proper” motion should not be dependent on the success of the motion. The rule provides that the time for filing an appeal runs from the time of “service by any party of the notice of filing of the order disposing ” of the post-judgment motion. Minn. R. Civ.App. P. 104.01, subd. 2 (emphasis added). The rule does not state that the disposition must be favorable to toll the time for appeal. The parties’ reliance on the merits of the motion would inject back into postjudgment motion practice the very uncertainty that the 1998 amendments were designed to eradicate. Instead, the rule simply requires a proper motion and directs the court to determine if the motion is one of the six motions specified in subdivision two.

We must now determine when a timely motion is “proper.” First, the party who files a posttrial motion must do so in compliance with the Rules of Civil Procedure. See generally Minn. R. Civ. P. 1 (outlining the scope of the rules and stating that they govern the procedure in district courts in Minnesota); Minn. R. Civ. P. 1-86.02. These requirements include in part stating the grounds for the motion with “particularity,” setting forth the relief sought with any required supporting documentation, such as affidavits, and serving and filing the motion with the appropriate signatures in place. See generally Minn. R. Civ. P. 7.02 and 11. If a party’s post-judgment motion is timely, filed within the time for a motion for a new trial, and procedurally in order, then all parties and the court can prepare to promptly respond to it.

In order to be “proper,” the post-trial motion must also be “authorized.” One of the purposes of the 1998 amendments was “to avoid a party’s erroneous assumption that an improper or unauthorized motion would prevent the running of an appeal deadline.” Minn. R. Civ.App. P. 104.01, Advisory Comm. Cmt. - 1998 Amendment. “Counsel must carefully determine whether posttrial motions are authorized in certain proceedings.” Id. (citing Schiltz v. City of Duluth, 449 N.W.2d 439 (Minn.1990) (discussing which new trial motions are authorized in special proceedings); Steeves v. Campbell, 508 N.W.2d 817 (Minn.App.1993) (holding that a new trial motion in order for protection proceedings is not authorized, and order denying such a motion is not appealable)) (emphasis added). In order to avoid uncertainty, we conclude that the test for determining whether a motion is authorized, and therefore proper, is to determine whether on the face of the document the party has filed a motion that is expressly allowed under subdivision 2. This interpretation provides the court and all of the parties to the litigation with the clarity that the 1998 amendments were trying to achieve. A party will not have to await the resolution of its motion to determine whether the motion has tolled the time for appeal. Further, the filing of a proper and timely posttrial motion by “any party” tolls the time for appeal for “all parties.” See Minn. R. Civ.App. P. 104.01, subd. 2. All parties are entitled to rely on timely motions, which on their face are authorized, thus, eliminating uncertainty and ineffective filings of notices of appeal by parties not joining the posttrial motions. See generally Minn. R. Civ.App. P. 104.01, subds. 2, 3; see also Minn. R. Civ. P. 1 (stating that the rules of procedure should be construed to secure “just, speedy, and inexpensive determinations of every action”).

Applying our interpretation to the facts presented, we hold that appellant’s motion was proper. Appellant’s timely Rule 60.02(a) and (f) motion is one of the authorized motions specified in Rule 104.01, subdivision 2. Further, no one argues that the motion was procedurally deficient. In that appellant’s motion was timely and proper, we hold that the time for appeal runs for all the parties from August 17, 1999, the date of service by appellant of the notice of filing of the June 18, 1999 order disposing of appellant’s outstanding Rule 60.02(a) and (f) motion.

We therefore conclude that the court of appeals erred in dismissing Madson’s appeal. Because jurisdiction for review of the underlying summary judgment motion exists, review of the denial of the Rule 60.02(a) and (f) motion to vacate judgment is also proper under Minn. R. CivApp. P. 103.04. Therefore, we reverse and remand to the court of appeals for review of both the summary judgment entered on May 19, 1999 and the order filed August 17, 1999.

Reversed and remanded.

PAGE, J., took no part in the consideration or decision of this case.