author: KAPSNER, Justice.

text:
    2001 ND 38
    Wilbur SNYDER, Claimant and Appellant, v. NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee.
    No. 20000204.
    Supreme Court of North Dakota.
    Feb. 20, 2001.

      Deborah J. Carpenter, Carpenter Law Offices, Bismarck, ND, for claimant and appellant.
    Lawrence E. King, Special Assistant Attorney General, Bismarck, ND, for appel-lee.
   KAPSNER, Justice.

[¶ 1] Wilbur Snyder has appealed a judgment affirming a North Dakota Workers Compensation Bureau (“Bureau”) order affirming an earlier order requiring Snyder to forfeit all further benefits relating to his 1988 injury and to repay benefits of $3,741.64. We affirm.

I

[¶ 2] Snyder suffered a work-related ’ injury in 1988. The Bureau accepted liability and awarded benefits. In 1990, the Bureau notified Snyder “we have changed your status to permanent total disability” and that he would receive total disability payments “as long as you remain totally disabled.” In 1998, the Bureau initiated an investigation to determine if Snyder was working at the Midtowner Restaurant in Mandan. On November 4, 1998, the Bureau mailed Snyder a notice of intention to discontinue benefits, stating, in part:

THE BUREAU HAS RECEIVED EVIDENCE YOU HAVE MADE FALSE STATEMENTS. YOU FAILED TO REPORT TO THE BUREAU THE RECEIPT OF INCOME FROM WORK. ACCORDINGLY, AND PURSUANT TO 65-05-33, ALL BENEFITS ARE FORFEITED AS OF 11/25/98. A LEGAL ORDER WILL BE FORTHCOMING.

In an order of December 21, 1998, the Bureau found Snyder had performed a number of activities at the Midtowner Restaurant, for which the owner paid him $80 per month and gave him $30-60 per month in meals. The Bureau found that on 12 income and work status cards mailed to Snyder in 1998, Snyder was asked, “Have you done any work, whether for pay or not?” The Bureau found Snyder twice did not respond to the question, eight times answered in the negative, and twice indicated he had worked and received $80 per month. The Bureau further found Snyder willfully made false statements in connection with his claim, forfeited any additional benefits in connection with the claim, and was required to repay benefits of $3,741.64.

[¶3] On December 23, 1998, Snyder requested a hearing “on the issues of fraud and alleged overpayment.” On May 11, 1999, a temporary administrative law judge (“TALJ”) issued a notice of hearing and a specification of issues, stating the issues would be whether Snyder made willful false statements about his work activities and receipt of income, and whether he failed to report income to the Bureau. After a hearing on June 30, 1999, the TALJ issued recommended findings of fact, conclusions of law, and order on August 9, 1999. The TALJ recommended finding:

X.
... The claimant said that since the end of May 1998, he had been opening the Midtowner Restaurant on a daily basis at 5:00 a.m. and staying until approximately 7:00 a.m. The claimant admitted that he routinely opened the restaurant for business, baked rolls, turned on the grill, made coffee, and signed receipts for delivery of bread. He also disclosed that' if a customer came in, he would cook and serve the meal and collect money at the cash register. The claimant also admitted that he periodically picks up supplies from Barlow’s Super-value [sic] and also assisted Joe Za-chmeier with some light maintenance work at the restaurant.... [T]he claimant finally admitted that he had received a cash payment of $80 per month from Zachmeier from June through September 1998 for work that he did at the Midtowner Restaurant.
XIII.
The Bureau also contends that it mails out Income and Work Status Cards to claimants every 28 days to verify their continued eligibility to receive disability benefits. In 1998, ... [o]n these cards the claimant was asked, “Have you done any work, whether for pay or not?” The claimant responded “No” on all of the cards except the February 6, 1998, June 1, 1998, October 19, 1998, and December 1, 1998, cards. On the February and June cards the claimant did not respond to the question, but on the October and December 1998 cards he indicated that he had done work and received $80 per month.
XXIII.
The claimant testified in response to questioning from his attorney that he had never denied the activities that he performed at the Midtowner Restaurant and it was his position that such activities did not constitute “work”. Instead, he said it was simply therapy.

The TALJ also recommended finding the owner of the Midtowner Restaurant admitted paying Snyder $80 per month and giving him $30-60 of food per month, and that Snyder was listed as an employee with Job Service North Dakota.

[¶ 4] The TALJ recommended concluding:

XVI.
... This hearing officer concludes, as a matter of law, that the greater weight of the evidence supports a finding that there were false claims or statements made by the claimant, Wilbur Snyder, and that such false statements were made “willfully”, and that the act of making the false statements as previously identified in the findings of fact was done intentionally. Further, the greater
weight of the evidence has clearly established that the claimant’s state of mind was purposeful in making the false statements. Snyder admitted to such at the hearing.
XXV
This hearing officer concludes, as a matter of law, that the false claims or false statements attributable to the claimant (Wilbur Snyder) are sufficiently material and that such false statements could have misle[ ]d the Bureau in their determination of the claim. The information provided to the Bureau by the claimant was less than candid and forthright. Such information certainly could have misle[ ]d the Bureau in its efforts to verify the claimant’s entitlement to continued benefits. The greater weight of the evidence also supports a finding that the claimant’s false statements were sufficiently material to support a forfeiture of future benefits.

[¶ 5] The TALJ proposed ordering “that the Bureau’s Order Denying Further Benefits be affirmed.” In a final order of' October 1, 1999, the Bureau modified four of the TALJ’s recommended findings and rejected a commentary on the evidence made by the TALJ. The Bureau otherwise adopted the TALJ’s recommended findings and conclusions, and ordered “that the Bureau’s final Order dated December 21, 1998, is AFFIRMED and that the claimant shall forfeit all further benefits and shall be obligated to repay benefits in the amount of $3,741.64.”

[¶ 6] Snyder appealed to the district court, which affirmed the Bureau’s order. Snyder appealed to this Court.

II

[¶ 7] On appeal, we review the decision of the administrative agency, rather than that of the district court, although the district court’s analysis is entitled to respect. Wanstrom v. North Dakota Workers Comp. Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860. “The interpretation of a statute is a question of law, which is fully reviewable by this court.” Id. We recently reiterated the scope of our review:

On appeal, we review the decision of the Workers Compensation Bureau. Siewert v. North Dakota Workers Comp. Bureau, 2000 ND 33, ¶ 18, 606 N.W.2d 501. Under N.D.C.C. §§ 28-32-19 and 28-32-21, we affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant’s constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 7, 611 N.W.2d 898. We exercise restraint in determining whether the Bureau’s findings of fact are supported by a preponderance of the evidence and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580.

Jacobson v. North Dakota Workers Comp. Bureau, 621 N.W.2d 141, 2000 ND 225, ¶ 7.

Ill

[¶ 8] The Bureau terminated Snyder’s benefits because he made false statements about work activities and failed to report income from work. Snyder contends the Bureau was not entitled to seek return-to-work information from him. Section 65-05-08(3), N.D.C.C., requires individuals receiving disability or rehabilitation benefits to report to the Bureau:

Any employee who is eligible for, or receiving disability or rehabilitation benefits under this title shall report any wages earned, from part-time or full-time work from any source. If an employee fails to report wages earned, the employee shall refund to the bureau any disability or vocational rehabilitation benefits overpaid by the bureau for that time period.... If the employee willfully fails to report wages earned, the employee is subject to the penalties in section 65-05-33. An employee shall report whether the employee has performed work or received wages. The bureau periodically shall provide a form to all injured employees receiving disability or rehabilitation benefits which the injured employee must complete to retain eligibility for further disability or rehabilitation benefits, regardless of the date of injury or claim filing.... An injured employee who is receiving disability or vocational rehabilitation benefits must report any work activities to. the bureau whether or not the injured employee receives any wages.... For purposes of this subsection, “work” does not include routine daily activities of self-care or family care, or routine maintenance of the home and yard, and “activities” does not include recreational gaming or passive investment endeavors.

Snyder argues N.D.C.C. § 65-05-08, providing for monthly reports to the Bureau, is inapplicable to him because it was not in effect at the time of his work injury.

[¶ 9] Unless otherwise provided, statutes in effect on the date of an injury govern workers compensation benefits. Wanstrom, 2000 ND 17, ¶ 7, 604 N.W.2d 860. Since 1919, what is now codified as N.D.C.C. § 65-05-04 has provided the Bureau may review a compensation award at any time and may end, diminish, or increase the compensation previously awarded. ' When the Bureau changed Snyder’s status to permanent total disability, it advised Snyder he would receive total disability payments “as long as you remain totally disabled.” Section 65-05-04, N.D.C.C., is a legislative recognition that a benefit recipient’s status may change over time. Thus, the Bureau may appropriately investigate whether a recipient continues to be disabled. Section 65-05-08(3), N.D.C.C., is a legislative recognition that inquiring about a recipient’s work activities is an appropriate part of such an investigation. Section 65-05-08(3), N.D.C.C., specifically provides a recipient of disability benefits must complete reporting forms “to retain eligibility for further disability or rehabilitation benefits ... regardless of the date of injury or claim filing.” We conclude Snyder’s argument is without merit.

[¶ 10] Snyder argues N.D.C.C. § 65-05-08 “does not even specifically address those claimants who are on permanent and total disability.... The statute clearly addresses temporary disability.” The statute does not distinguish between permanent or temporary disability. It addresses all recipients of disability benefits by referring only to “disability,” which N.D.C.C. § 65-01-02(15) defines as “loss of earnings capacity and may be permanent total, temporary total, or partial.”

IV

[¶ 11] Snyder contends the Bureau did not afford him procedural due process before terminating his benefits. Snyder argues:

The first manner in which the procedure is deficient is the usage of the RTW cards for injured workers who have reached retirement age and whose benefits have been “transformed” from temporary status to a recognition that they will not meaningfully re-enter the work force.

We have already concluded the reporting requirement of N.D.C.C. § 65-05-08(3) applies to Snyder. Thus, we conclude the Bureau did not deny Snyder procedural due process by sending him forms for reporting work activities and income.

[¶ 12] Snyder argues a second manner in which the Bureau’s procedure was deficient “is the cards themselves. The RTW cards do not anywhere define or put the claimants on notice of what the Bureau will consider ‘work’.” Section 65-05-08(3), N.D.C.C., requires a recipient of disability or rehabilitation benefits to “report any work activities to the bureau whether or not the injured employee receives any wages.” Neither the legislature nor the Bureau has defined “work” for purposes of the reporting requirement of N.D.C.C. § 65-05-08(3). We recently said:

The lack of either a statutory or administrative-rule definition of “work” leaves the issue of whether certain activity is “work” to an after-the-fact determination. To the extent this may seem to give inadequate notice of what the Bureau considers “work,” words not defined in a statute are to be understood in their ordinary sense. N.D.C.C. § 1-02-02. This means not only that the Bureau may not agree with the claimant but, without a definition in the statute or a rule, the Bureau takes the risk the courts will not agree with the Bureau’s application of the term to particular facts.

Jacobson, 2000 ND 225, ¶ 15 n. 1, 621 N.W.2d 141. Snyder opened the Midtowner Restaurant at 5:00 a.m. daily and stayed until 7:00 a.m., baked rolls, turned on the grill, made coffee, signed receipts for deliveries, cooked and served meals to customers, collected money at the cash register, picked up supplies, and performed maintenance work, for which he received cash payments of $80 per month and food worth $30-60 per month. We conclude, as a matter of law, Snyder’s restaurant activities constitute “work” in its ordinary sense.

[¶ 13] Snyder argues his activities at the restaurant were “for his benefit as therapy or self-care,” and not “work,” which N.D.C.C. § 65-05-08(3) provides “does not include routine daily activities of self-care.” The term “self-care” has not been defined for purposes of workers compensation benefits. While Snyder’s restaurant activities may be therapeutic for him, they, nevertheless, constitute work, and we are not persuaded they fall within the exception for “self-care.”

V

[¶ 14] Snyder contends the Bureau did not meet its burden of proving he willfully made false statements in violation of N.D.C.C. § 65-05-33, which provides, in part:

1. A person is guilty of a. class A misdemeanor if that person is claiming benefits or payment for services under this title, and that person:
a. Willfully files a false claim or makes a false statement.
c. Has a claim for disability benefits that has been accepted by the bureau and willfully fails to notify the bureau of:
(1) Work or other activities as required under subsection 3 of section 65-05-08;
(2) The receipt of income from work; or
(3) An increase in income from work.
3. In addition to any other penalties provided by law, the person claiming benefits or payment for services in violation of this section shall reimburse the bureau for any benefits paid based upon the false claim or false statement and, if applicable, under section 65-05-29 and shall forfeit any additional benefits relative to that injury.

Snyder argues:

A difference of opinion [about the meaning of “work”] does not amount to fraud or false statements. Wilbur considered his activities at the Midtowner therapy after his heart attack, in the absence of any direction from the Bureau. He got approval from his doctor to do it since formal rehab did not work for him before. He did not consider the money he got to be “pay”, since it was given to him by his grateful friend.... It was error for the ALJ, the Bureau, and the lower court to ignore this evidence of record that Wilbur’s statements were not “willful” to trigger the termination.

[¶ 15] Here, there was more than a difference of opinion about the meaning of “work.” Based on the common understanding of work, Snyder was making a false statement when he reported no work activity, see Jacobson, 2000 ND 225, ¶ 15, 621 N.W.2d 141, while he was opening the Midtowner Restaurant at 5:00 a.m. daily, baking rolls, turning on the grill, making coffee, signing receipts for deliveries, cooking and serving meals to customers, collecting money at the cash register, picking up supplies, and performing maintenance work for cash payments of $80 per month and food worth $30-60 per month.

[¶ 16] “Section 65-05-33, N.D.C.C., authorizes the Bureau to use administrative proceedings to recoup benefits paid to a claimant based upon a false claim or statements and to require a claimant to forfeit future benefits for that injury.” Vernon v. North Dakota Workers Comp. Bureau, 1999 ND 153, ¶ 12, 598 N.W.2d 139. To trigger the statutory consequences of N.D.C.C. § 65-05-33, for a false claim or statement, the Bureau must prove a claimant willfully made a material false claim or statement in connection with a claim or application under Title 65, N.D.C.C. Jacobson, 2000 ND 225, ¶¶ 9, 10, 621 N.W.2d 141. To be willful, conduct must be engaged in intentionally, not inadvertently. Id. at ¶ 9. If an injured employee has willfully made a false statement in connection with a claim, “[w]e additionally require the Bureau to prove the false statement is material.” Hausauer v. North Dakota Workers Comp. Bureau, 1997 ND 243, ¶ 12, 572 N.W.2d 426. “If the Bureau seeks reimbursement for benefits paid, the level of materiality required is proof by the Bureau that the false claim or false statement caused the benefits to be paid in error.” Jacobson, at ¶ 10. “A false claim or false statement is sufficiently material for forfeiture of future benefits if it is a statement which could have misled the Bureau or medical experts in a determination of the claim.” Id.

[¶ 17] We addressed the materiality of a failure to report income in Unser v. North Dakota Workers Comp. Bureau, 1999 ND 129, ¶¶ 18, 22, 598 N.W.2d 89:

A failure to report income is, by the very nature of the violation, material to the Bureau’s ability to determine a claimant’s entitlement to benefits and to calculate the amount of benefits. By failing to report income a claimant impedes the Bureau’s process of determining eligibility.
When the claimant’s wrongful concealment of income impedes the Bureau’s proof of materiality of the nondisclosure for reimbursement purposes, fairness dictates the claimant, not the Bureau, suffer the consequences.

[¶ 18] Snyder failed to disclose work activities and income he received in connection with his unreported work activities. Under Unser, 1999 ND 129, ¶ 18, 598 N.W.2d 89, Snyder’s failure to report income he received in connection with work activities impeded the Bureau’s process of determining eligibility and was, therefore, material. A failure to report work activities similarly impedes the Bureau’s process of determining eligibility. Snyder’s wrongful concealment of work activities and income he received in connection with work activities, which impeded the Bureau’s process of determining his eligibility for disability benefits, is evidence from which a reasoning mind could reasonably find, as the Bureau did, that Snyder willfully made material false statements in connection with his claim.

VI

[¶ 19] Snyder contends that finding false claims or statements by “the greater weight of the evidence,” rather than by “clear and convincing” evidence, violates N.D. Const, art. I, § 21. Snyder did not raise this argument in the specification of errors he submitted to the district court and has not supported his assertion with citations to relevant authority or supportive reasoning. “Parties must do more than submit bare assertions to adequately raise a constitutional issue.” Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, ¶ 14, 601 N.W.2d 580. We, therefore, decline to address Snyder’s “perfunctory argument” that N.D. Const, art. I, § 21, “requires the Bureau to prove civil violations of N.D.C.C. § 65-05-33 by clear and convincing evidence.” Renault, at ¶ 14.

VII

[¶ 20] Snyder contends his reporting failures were “a de minimus violation” and repayment of benefits paid and forfeiture of future benefits constitute an “excessive fine” under the North Dakota and United States constitutions and are “ ‘grossly disproportional’ to the infraction.” “Generally, issues not adequately briefed or argued on appeal will not be considered.” First State Bank v. Moen

Enterprises, 529 N.W.2d 887, 893 (N.D. 1995). Without citations to relevant authority or supportive reasoning, an argument is assumed to be without merit. Friedt v. Moseanko, 484 N.W.2d 861, 863 (N.D.1992). Snyder did not provide any citations to relevant authority or supportive reasoning. His argument is not considered or decided.

VIII

[¶ 21] The judgment is affirmed.

[¶ 22] VANDE WALLE, C.J., and MARING and NEUMANN, JJ„ and McLEES, D.J., concur.

[¶ 23] The Honorable McLEES, D.J., sitting in place of SANDSTROM, J., disqualified.

      . The Bureau provides recipients of disability benefits a card each month for reporting income and whether the recipient has done any work.

      . Section 50-25.2-01(13), N.D.C.C., provides that "self-care” "includes maintaining personal hygiene, eating, and dressing,” for purposes of vulnerable adult protection services.

      . See also Aalund v. North Dakota Workers Comp. Bureau, 2001 ND 32, in which the appellant similarly failed to preserve an issue about the standard of proof necessary to prove a violation of N.D.C.C. § 65-05-33.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

license: Public Domain

text:
    2001 ND 37
    In the Interest of C.H., A.H., M.H. and A.H., Minor Children. L.J. Bernhardt, Petitioner and Appellee, v. C.H., a child, Respondent, and A.H., a child, M.H., a child, A.H., a child, D.H., their mother, Respondents and Appellees, and M.H., their father, Respondent and Appellant.
    No. 20000119.
    Supreme Court of North Dakota.
    Feb. 20, 2001.

      James A. Hope, Assistant State’s Attorney, Dickinson, ND, for petitioner and ap-pellee.
    Sandra K. Kuntz, Mackoff, Kellogg, Kirby & Kloster, P.C., Dickinson, ND, for respondents and appellees A.H., M.H., and A.H., minor children.
    Rodney E. Pagel, Pagel Weikum Law Firm, Bismarck, ND, for respondent and appellee D.H.
    David F. Senn, Senn Law Office, Dickinson, ND, for respondent and appellant M.H.
   VANDE WALLE, Chief Justice.

[¶ 1] M.H., father of the minor children, appealed the juvenile court’s .April 10, 2000, order granting full placement authority of children A.H., M.H., and A.H. to the Director of Stark County Social Service Board and denying M.H.’s motion to change the custodial agency. We affirm.

I

[¶ 2] M.H. was granted custody of the four minor children on April 26, 1999, because of a significant change of circumstances since the original child custody determination granting custody to D.H., the mother, in 1995. The trial court found the mother had frustrated visitation between the father and the children and had attempted to alienate the children from their father. Stating the court had exhausted remedies available to correct the mother’s misbehavior, and because she had been a stubborn and defiant custodial parent, the court concluded the only option available was to change custody. The court also found in the order dated April 26, 1999, a change in custody to them father was in the best interests of the children. D.H. appealed that order to this Court.

[¶ 3] The physical transfer of the children to the father’s custody occurred on May 3, 1999. The children, who had been living and attending school in Bismarck, moved to live with their father in Dickinson. The children resisted the change and expressed their contempt for their father. The children resorted to acting-out behavior such as teasing and taunting the father, damaging walls and furniture in the home, verbally abusing their father, and making threats toward their father. On June 7, 1999, one of the children told a Stark County social worker that the father did not care about the kids and that he should smash the father’s head against the wall so they could all go home. On June 21, 1999, and July 8, 1999, similar statements were repeated. On June 7, 1999, one of the other children made suicidal statements which were repeated on June 21, 1999, and July 8,1999.

[¶ 4] On July 12, 1999, the children ran away when the father allowed them to travel to Bismarck to attend the Prairie Rose Games. On July 17, 1999, the children surrendered themselves to the custody of Stark County Social Services.

[¶ 5] The Director of Stark County Social Service Board petitioned the juvenile court for the temporary care, custody and control of each of the children under the authority of N.D.C.C. § 27-20-03(l)(a), because the children were unruly. On September 2, 1999, the juvenile court found the children unruly and gave the Director of Stark County Social Service Board temporary custody of the children. The juvenile court granted authority to place the oldest child in any location consistent with her best interests because she would be 18 years old within three months. The juvenile court restricted placement for the three younger children by requiring the director to make his placement decisions within the context of the district court’s April 26, 1999, order and any subsequent changes to that order made by the North Dakota Supreme Court on the appeal of the April 26 order. The September 2, 1999, order by the juvenile court granting temporary custody to the Director of Stark County Social Service Board was not appealed.

[¶ 6] The oldest child was placed with the mother. The three younger children were placed in foster care in Bismarck. On January 3, 2000, this Court affirmed the district court’s April 26, 1999, order changing custody to the father, however the denial of visitation for the mother for one year, also a part of that order, was reversed.

[¶ 7] The Director of Stark County Social Service Board subsequently petitioned the juvenile court for full placement authority for the three younger children. On April 10, 2000, following a hearing on March 15, 2000, the juvenile court granted the director full placement authority to place the children in a location consistent with their best interests and to make reasonable efforts to reunify the children with their family. The juvenile court found the children had failed to establish a relationship with their father, both during the time placed in his home and during visitation while in foster care. The juvenile court also found the children were under stress in foster care with further deterioration. Significantly, for purposes of this appeal, the court, relying on the testimony of the children’s counselor, found there would “probably” be no additional harm to the children if they were placed with the mother under proper conditions and safeguards. The court also found Stark County Social Services had made reasonable efforts to reunite the children with their father. The Director of Stark County Social Service Board promptly placed the children with their mother.

II

[¶ 8] M.H., the father, argues the juvenile court erred in granting full authority for placement to the Director of Stark County Social Service Board. The father also claims the juvenile court has no right to issue an order contravening the divorce order.

[¶ 9] In an appeal from an order of the juvenile court, our review is comparable to a trial de novo in that we may reexamine the evidence. Interest of A.R., 2000 ND 130, ¶ 3, 612 N.W.2d 569. Our review is thus not limited to determining whether the juvenile court’s findings are clearly erroneous. Interest of R.K.E., 1999 ND 106, ¶ 4, 594 N.W.2d 702. Nevertheless, we give “appreciable weight” to the findings of the juvenile court because that court heard the testimony and had the opportunity to observe the candor and demeanor of the witnesses. See N.D.C.C. § 27-20-56(1); Interest of R.D.B., 1998 ND 15, ¶ 9, 575 N.W.2d 420.

[¶ 10] The juvenile court has exclusive original jurisdiction over proceedings concerning unruly children. N.D.C.C. § 27 — 20—03(l)(a). The definition of an unruly child includes a child who “[i]s habitually disobedient of the reasonable and lawful commands of the child’s parent, guardian, or other custodian and is ungovernable; or who is willfully in a situation dangerous or injurious to the health, safety, or morals of the child or others” as described in N.D.C.C. § 27 — 20—02(17)(b). The juvenile court found the children to be unruly and each in need of treatment or rehabilitation. This finding was supported by evidence of the children’s specific actions and behavior including verbal abuse of their father, destruction of walls and furniture, physically striking their father, threats, suicidal statements, and running away. On the record in this case, the juvenile court had jurisdiction to grant temporary custody of the unruly children to the Director of Stark County Social Service Board. Notwithstanding the custody provision in the decree of divorce, such authority is necessary in order to effect one of the public purposes of the Uniform Juvenile Court Act, “[t]o provide for the care, protection, and wholesome moral, mental, and physical development of children coming within its provisions.” N.D.C.C. § 27-20-01(1).

[¶ 11] The father also argues the juvenile court erred because there was insufficient evidence to establish a significant change of circumstances to warrant a modification of the September 2, 1999, order as required by N.D.C.C. § 27-20-37(2), which states “an order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child.” The juvenile court found the children had not established a relationship with their father. The juvenile court also found the children under stress in foster care, there was a possibility of further deterioration, and there would probably be no additional harm to the children if they were placed with the mother. The juvenile court further found Stark County Social Services made reasonable efforts to reunite the children with their father. The court did find changes of circumstances since the September 2, 1999, order. The juvenile court’s modification of the September 2, 1999, order to grant full placement authority of the three younger children, rather than restricting their placement to be made within the context of the district court’s April 26, 1999, order, was supported by a change in circumstances as provided by N.D.C.C. § 27-20-37(2).

Ill

[¶ 12] After being given full placement authority, the Director of Stark County Social Service Board, as custodian, had broad discretion with placement as described in N.D.C.C. § 27-20-38:

Rights and duties of legal custodian. A custodian to whom legal custody has been given by the court under this chapter has the right to the physical custody of the child and the right to determine the nature of the care, placement, and treatment of the child, including ordinary medical care as well as medical or surgical treatment for a serious physical condition or illness which in the opinion of a licensed physician requires prompt treatment, except for any limits the court may impose. The custodian also has the right and duty to provide for the care, protection, training, and education, and the physical, mental, and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the child’s parents or guardian.

Stark County Social Services had the obligation and right to determine the nature of the care, placement and treatment of the children consistent with their best interests.

[¶ 13] The children’s counselor, Dr. Doppler, testified the children’s relationship with their mother was very positive and she was their primary source of psychological support. In contrast, Dr. Doppler testified the children had never developed a good relationship with their father and now they were contemptuous and negative toward their father. Placement with their father would be problematic. The guardian ad litem report filed March 13, 2000, coincides with this analysis and recommends placement with the mother.

IV

[¶ 14] The father also argues the juvenile court erred by denying his motion to change the custodial agency. The record supports the juvenile court’s finding Stark County Social Services made considerable and reasonable efforts to prevent the removal of the children from the father’s home. The Director of Stark County Social Service Board referred to the expertise of other social workers in his agency as well as outside agencies and professionals such as Burleigh County Social Services, the Family Safety Center, psychologists from Badlands Human Service Center, and Dr. Doppler. Faced with the evidence of this case, the juvenile court did not err in denying the father’s motion to change the custodial'agency.

[¶ 15] Previous custody proceedings of this family indicate the current situation was directly the fault of the mother, who stubbornly frustrated the children’s visitation with their father in the years since the divorce and alienated the children against their father. In McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D.1995), we held a parent who willfully alienates a child from the other parent may not be awarded custody based on that alienation. In Mc-Adams we reversed the district court because the “sole rationale employed by the district court for splitting custody was the alienation.” Id. We also held in McAdams the district court failed to properly consider the children’s best interests. Id. In this case the situation has progressed beyond McAdams. This is no longer a custody determination ease, rather it has unfortunately evolved into a juvenile placement ease. Far from deciding on a “sole rationale” of alienation, the juvenile court here considered the best interests of the children in its initial decision of granting temporary custody to Stark County Social Services, as well as in its consideration of the motion for full placement authority. The juvenile court based the determination of full placement authority on testimony from social workers, psychologists, and the children’s counselor, Dr. Doppler. We do not affirm the award of custody to the mother on the basis of her actions; rather we affirm the juvenile court’s decision to give full placement authority to Stark County Social Services, which has been granted custody upon a finding of unruliness of the children.

[¶ 16] Although the underlying standard in both the juvenile court and the divorce court is the best interests of the child, the divorce court applies that standard only between the two parents. The juvenile court must apply the standard on a broader scale which includes giving custody not only to the parents but may include placement with a foster parent or, if the child is found to be delinquent, an institution, or even terminating the parental rights if the juvenile court finds the children to be deprived. N.D.C.C. §§ 27-20-31, 27-20-32, 27-20-44. ■

[¶ 17] The mother’s behavior has poisoned the children’s relationship with their father, a result the court has hoped to prevent. However, action by the court in this case was apparently too little and too late. The damage has been done and the children’s relationship with their father is poisoned by the mother’s actions. We recognize the result of the juvenile court order is to effectively reverse the prior custody order in the amended divorce decree, as affirmed by this Court. This case signals the need for earlier and effective intervention in cases such as this one, with truly egregious examples of one recalcitrant parent frustrating visitation and alienating children against the other parent.

[¶ 18] We are aware the case may be viewed as one in which one party is rewarded for her disobedience to court orders. It may be understood for the present as such a case. However, the future of these children, as a result of this disobedience, is clouded. The juvenile court attempted to protect the welfare of the children which is the underlying obligation of the court under the Uniform Juvenile Court Act, N.D.C.C. ch. 27-20. In the Interest of N.W., 531 N.W.2d 303, 306 (N.D.1995).

[¶ 19] We affirm the juvenile court’s order granting full placement authority to the Director of Stark County Social Service Board and denying M.H.’s motion to change the custodial agency.

[¶ 20] WILLIAM A. NEUMANN, MARY MUEHLEN MAKING, JJ., WILLIAM W. McLEES, D.J., concur.

[¶ 21] McLEES, D.J., sitting in place of KAPSNER, J., disqualified.

SANDSTROM, Justice,

dissenting.

[¶ 22] ‘We hold a parent who willfully alienates a child from the other parent may not be awarded custody based on that alienation.” McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D.1995).

[¶ 23] The majority acknowledges, at ¶ 15, “Previous custody proceedings of this family indicate the current situation was directly the fault of the mother, who stubbornly frustrated the children’s visitation with their father in the years since the divorce and alienated the children against their father.”

[¶ 24] Here the majority, ignoring our case law, affirms de facto custody to the mother, while acknowledging, at ¶ 18, that “the future of these children, as a result of [the mother’s conduct], is clouded.”

[¶ 25] This toxic situation has been created by the mother’s injection of her venom into her children. Sadly, the director of the Stark County Social Service Board has aided and abetted the mother and exacerbated the situation, ending any remaining hope for these children, and providing encouragement for other toxic parents who might similarly poison their children.

[¶ 26] I would reverse.

[¶ 27] Dale V. Sandstrom

      . We do not cite the prior case appealing the divorce order because this is a proceeding of juvenile court and N.D.C.C. § 27-20-56(1) states the names of the children may not appear on the record on appeal.


author: VANDE WALLE, Chief Justice.

text:
    2001 ND 41
    Ardella KOPP, n/k/a Ardella Stein, Plaintiff and Appellee, v. Myron E. KOPP, Defendant and Appellant.
    No. 20000200.
    Supreme Court of North Dakota.
    Feb. 21, 2001.

      Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, ND, for plaintiff and ap-pellee.
    Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Myron Kopp appealed from an amended divorce judgment; We conclude the trial court did not abuse its discretion in granting relief from the original judgment under N.D.R.Civ.P. 60(b)(vi) and entering an amended judgment. We therefore affirm.

[¶ 2] Myron and Ardella Kopp were divorced by a judgment dated December 15, 1999. Under the terms of the original judgment, Myron was awarded property valued at $97,933, and was ordered to pay marital debts of $97,961. Ardella was awarded property valued at $104,763, and ordered to pay marital debts of $97,186. Thus, Ardella received net equity of approximately $7,500, while Myron received approximately equal amounts of property and debt. No spousal support was awarded, but Myron was ordered to pay monthly child support of $526. Each party was ordered to indemnify and hold the other harmless in the event he or she failed to pay the debts assigned.

[¶ 3] Neither party appealed from the judgment. In February 2000, shortly after the time for appeal expired, Myron filed for bankruptcy in federal court. On March 20, 2000, Ardella moved for relief from the divorce judgment in state court under N.D.R.CivJP. 60(b). Following an evidentiary hearing, the trial court concluded that Myron’s bankruptcy, which essentially released him from liability for the marital debt he was ordered to pay and transferred that burden to Ardella, had created a “terrific disparity” in the parties’ financial situations. Accordingly, the court, under N.D.R.CivP. 60(b), vacated the earlier judgment and entered an amended judgment. Under the amended judgment, Myron was ordered to pay $500 per month in spousal support; two retirement accounts and the cash value of two life insurance policies, previously awarded to Myron and valued at approximately $15,798, were awarded to Ardella; and Myron was ordered to pay $500 for Ardel-la’s attorney fees.

[¶ 4] Myron argues the trial court was without jurisdiction to modify the original property distribution or to award spousal support when none was ordered in the original judgment. He contends that, under N.D.C.C. § 14-05-24 and this Court’s decision in Becker v. Becker, 262 N.W.2d 478 (N.D.1978), the trial court lost all authority to modify the property division or spousal support provisions of the original judgment once the time for appeal had expired.

[¶ 5] Under N.D.C.C. § 14-05-24, the trial court generally retains continuing jurisdiction to modify spousal support, child support, and child custody upon a showing of changed circumstances. See, e.g., Rowley v. Cleaver, 1999 ND 158, ¶ 12, 598 N.W.2d 125; Fichter v. Kadrmas, 507 N.W.2d 72, 74 (N.D.1993). The court does not, however, retain continuing jurisdiction to modify a final property distribution. Baker v. Baker, 1997 ND 135, ¶7, 566 N.W.2d 806. Furthermore, in Becker, 262 N.W.2d at 484, this Court held that when a trial court makes no initial award of spousal support and fails to expressly reserve jurisdiction over the issue, it subsequently lacks jurisdiction to award spousal support. See also Rudh v. Rudh, 517 N.W.2d 632, 634 (N.D.1994); Branson v. Branson, 411 N.W.2d 395, 398 (N.D.1987).

[¶ 6] We therefore agree with Myron that the trial court could not modify spousal support and property distribution based upon its continuing jurisdiction under N.D.C.C. § 14-05-24. Myron has, however, misconstrued the nature of Ar-della’s motion and the basis relied upon by the trial court in granting the motion. Ar-della’s motion was not one for modification based upon the court’s continuing jurisdiction under N.D.C.C. § 14-05-24, but rather was a motion for relief from the judgment under N.D.R.Civ.P. 60(b). A final divorce judgment may be attacked in the same manner and upon the same grounds as other judgments. Watne v. Watne, 391 N.W.2d 636, 638 (N.D.1986). Our caselaw interpreting a trial court’s general continuing jurisdiction to modify divorce decrees upon a showing of changed circumstances is wholly inapposite.

[¶ 7] By its terms, N.D.R.CivP. 60(b)(vi) authorizes a court to provide relief from a final judgment or order:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment or order in any action or proceeding for the following reasons: ... (vi) any other reason justifying relief from the operation of the judgment. The motion must be made within a reasonable time....

A motion under N.D.R.CivP. 60(b)(vi) is left to the sound discretion of the trial court, and its decision whether to vacate the judgment will not be disturbed on appeal unless the court has abused its discretion. Peterson v. Peterson, 555 N.W.2d 359, 361 (N.D.1996); First National Bank v. Bjorgen, 389 N.W.2d 789, 794 (N.D.1986). The trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Peterson, at 361; Crawford v. Crawford, 524 N.W.2d 833, 835 (N.D.1994). A trial court acts in an arbitrary, unreasonable, or unconscionable manner when its decision is not the product of a rational mental process by which the facts and law relied upon are stated and considered together for the purpose of achieving a reasoned and reasonable determination. Peterson, at 361.

[¶ 8] A motion under N.D.R.Civ.P. 60(b)(vi) must be brought within a reasonable time. Brakke v. Brakke, 525 N.W.2d 687, 689 (N.D.1994). It is generally held that a motion brought within one year of the judgment falls within a “reasonable time” under the rule, and these prompt motions for relief will be granted if justice requires it. Neubauer v. Neubauer, 524 N.W.2d 593, 595 (N.D.1994); 11 Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2864, at 355-56 (2d ed. 1995). In this case, Ardella moved for relief from the judgment on March 20, 2000, approximately three months after entry of the original judgment and within weeks after Myron filed for bankruptcy. The trial court did not abuse its discretion in concluding Ardella’s motion was brought within a reasonable time under N.D.R.Civ.P. 60(b)(vi).

[¶ 9] The inherent power of a court to vacate or otherwise grant relief from a judgment in the interest of justice has long been recognized in this state. See Hamilton v. Hamilton, 410 N.W.2d 508, 515 (N.D.1987) (citing numerous earlier cases). Rule 60(b), N.D.R.Civ.P., adopted and expanded upon those longstanding principles. See Hamilton, at 517-18. Rule 60(b) attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done, and accordingly N.D.R.Civ.P. 60(b)(vi) should be invoked only when extraordinary circumstances are present. Peterson, 555 N.W.2d at 361; Watne, 391 N.W.2d at 639.

[¶ 10] Rule 60(b)(vi), N.D.R.CivP., has been broadly construed as a grant of ample power to a trial court to vacate a judgment whenever that action is appropriate to accomplish justice. Hamilton, at 518; In re Braun, 145 N.W.2d 482, 484 (N.D.1966); 11 Wright, supra, § 2864, at 350. The rule provides for relief when the movant demonstrates it would be manifestly unjust to enforce a court order or judgment, and provides an escape from the judgment, unhampered by detailed restrictions. Brakke, 525 N.W.2d at 689; Braun, at 484-85. When it is disclosed that a judgment is so blatantly one-sided or so rankly unfair under the uncovered circumstances that courts should not enforce it, N.D.R.Civ.P. 60(b)(vi) provides the ultimate safety valve to avoid enforcement by vacating the judgment to accomplish justice. Peterson, 555 N.W.2d at 362; Brakke, at 689; Crawford, 524 N.W.2d at 836. Relief under N.D.R.CivP. 60(b)(vi) “is, by its very nature, invoked to prevent hardship or injustice and thus is to be liberally construed and applied.” Crawford, at 836 (quoting Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314, 316 (1983)).

[¶ 11] The trial court in this case noted the effect of Myron’s bankruptcy was to create a “terrible disparity between the financial situations of the parties” because Myron was relieved of the obligations on the marital debts he had been ordered to assume under the original divorce judgment. As a result, Ardella became solely liable to the creditors for those debts, in addition to the marital debts she had already assumed under the original judgment. In effect, the bankruptcy created an unjustifiable windfall to Myron at Ardella’s expense by wholly nullifying the equitable nature of the original divorce judgment, which had provided an essentially equal division of the marital assets and debts.

[¶ 12] Under the extraordinary circumstances of this case, we conclude the trial court did not abuse its discretion in granting relief from the original judgment under N.D.R.Civ.P. 60(b)(vi) and entering an amended judgment. Accordingly, we affirm the amended judgment.

[¶ 13] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., and RICHARD W. GROSZ, D.J., concur.

[¶ 14] The Honorable RICHARD W. GROSZ, D. J., sitting in place of KAPSNER, J., disqualified.

      . The bankruptcy court granted Ardella's motion for relief from the automatic bankruptcy stay, allowing the proceeding in state court to continue. The bankruptcy court ultimately discharged Myron's obligation for the marital debts, including his obligation to indemnify and hold Ardella harmless for those debts. See In re Kopp, 255 B.R. 230 (Bankr.D.N.D.2000).


text:
    2001 ND 40
    Bryce C. ANDERSON, and Tienne L. Anderson, Plaintiffs and Appellants, v. Karen JACOBSON, Personal Representative of the Estate of Allen R. Fischer, Defendant and Appellee.
    No. 20000064.
    Supreme Court of North Dakota.
    Feb. 21, 2001.

      Michael Ray Hoffman, Bismarck, ND, for plaintiffs and appellants.
    Brenda L. Blazer, Zuger Kirmis & Smith, Bismarck, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Bryce and Tienne Anderson appealed from a judgment dismissing, on its merits, their action for damages against Allen Fischer. The Andersons also appealed from an order denying their motion for new trial. We hold the jury verdict is not irreconcilable but represents a logical and probable decision on the relevant issues as submitted, the verdict is supported by substantial evidence, and the trial court did not abuse its discretion in denying the motion for new trial. We affirm.

I

[¶ 2] On July 25, 1994, Bryce Anderson was driving his vehicle northbound on Highway 83 in McLean County. As he approached an intersection at Totten Trail, Allen Fischer, who was driving his vehicle southbound on Highway 83, entered the intersection and made a left turn. Fischer failed to yield to Anderson and their vehicles collided. Anderson suffered a cut to his head, and he' was taken to the emergency room in Garrison, where he was treated and released.

[¶ 3] As a result of the accident, Anderson experienced neck and back pain and numbness in his left hand. He sought treatment from several doctors and filed this action for damages against Fischer. Anderson’s spouse, Tienne Anderson, joined the lawsuit, seeking damages for loss of her husband’s consortium. Bryce sought damages for past economic loss, including medical bills of $15,758.75 and lost wages of $2,300 for a swimming coach position he claims he was unable to continue for the 1995-1996 school year because of his injuries. He also sought $75,000 for past noneconomic loss, and $225,000 for future noneconomic loss. Tienne sought $75,000 for her loss of consortium.

[¶ 4] Fischer conceded he was 100 percent responsible for the automobile accident and also conceded Anderson expended $1,514 for medical bills resulting from the accident. However, Fischer defended the action, alleging most of the damages sought by Anderson were either caused by Anderson’s failure to follow his doctors’ instructions for treating his injuries or for ailments unrelated to the accident. The jury entered a special verdict finding Anderson did not receive “a serious injury” in the accident and also finding the fault of Anderson and Fischer each to be 50 percent of the proximate cause of the damages sought by Anderson. The jury found Anderson had past economic loss of $3,000 and past noneconomic loss of $10,000. Based upon the jury’s findings that Anderson had not experienced a serious injury and that he was 50 percent at fault in causing his damages, the trial court entered a judgment awarding the Andersons no damages and dismissing their action on its merits.

[¶ 5] The Andersons filed a motion for new trial, asserting there is insufficient evidence to support the jury verdict and the jury’s finding Bryce Anderson did not receive a serious injury is irreconcilable with the jury’s finding he incurred $3,000 in past economic loss. The trial court concluded “there was sufficient evidence to support the jury’s findings on fault and the amount of damages caused by the motor vehicle accident” and “there was a logical basis for the jury’s answers to the questions posed in the special verdict.” The trial court entered an order denying the motion for new trial.

II

[¶ 6] The Andersons claim the jury’s special findings that Bryce Anderson did not suffer a serious injury in the collision but that he incurred past economic loss of $3,000 are irreconcilable and require reversal for a new trial. We uphold special verdicts on appeal whenever possible and set aside a jury special verdict only if it is perverse and contrary to the evidence. Fontes v. Dixon, 544 N.W.2d 869, 871 (N.D.1996). We have adopted the following test for reconciling apparent conflicts in a jury’s verdict:

“[W]hether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted. If after a review of the district court’s judgment no reconciliation is possible and the inconsistency is such that the special verdict will not support the judgment entered below or any other judgment, then the judgment must be reversed and the case remanded for a new trial.” (Citation omitted). (Emphasis in original).

Barta v. Hinds, 1998 ND 104, ¶6, 578 N.W.2d 553. We reconcile a verdict by examining both the law of the case and the evidence to determine whether the verdict is logical and probable or whether it is perverse and clearly contrary to the evidence. Id.

[¶ 7] Under N.D.C.C. § 26.1-41-08(l)(a) a secured person is exempt from liability to pay damages for noneconomic loss arising from operation of a motor vehicle unless the victim incurs a serious injury:

1. In any action against a secured person to recover damages because of accidental bodily injury arising out of the ownership or operation of a secured motor vehicle in this state, the secured person is exempt from liability to pay damages for:
a. Noneconomic loss unless the injury is a serious injury.

Under N.D.C.C. § 26.1-41-01(21) serious injury is defined:

“Serious injury” means an accidental bodily injury which results in death, dismemberment, serious and permanent disfigurement or disability beyond sixty days, or medical expenses in excess of two thousand five hundred dollars;

This is a statutory threshold requirement for seeking noneconomic damages in an automobile accident, and the burden is on the plaintiff to allege and establish this threshold has been met. Reisenauer v. Schaefer, 515 N.W.2d 152, 155 (N.D.1994). The parties agree that to prove serious injury in this lawsuit Bryce Anderson had to show he incurred medical expenses in excess of $2,500. The jury found Anderson did not incur a serious injury, but it also found he incurred past economic loss of $3,000. The Andersons assert these findings are irreconcilable.

[¶ 8] Bryce Anderson requested an award of past economic loss for medical bills totaling $15,758.75 and for loss of a coaching salary of $2,300. While Fischer conceded his negligence in causing the automobile accident and also conceded his negligence caused Anderson to expend $1,514 for medical bills, Fischer disputes that Anderson’s other medical expenses or the loss of the coaching salary resulted from or were caused by Fischer’s negligence. Fischer claims most of Anderson’s medical bills and the loss of the coaching salary were either caused by Anderson’s failure to follow his doctors’ treatment advice or resulted from physical ailments such as tension and work stress, unrelated to the automobile accident.

[¶ 9] On the record evidence, the jury could have determined Bryce Anderson incurred $3,000 of past economic loss but did not incur the threshold $2,500 of medical expenses by concluding the loss of the coaching salary was to some extent, but not entirely, attributable to Fischer’s negligence, and that some medical expenses, but less than $2,500, were attributable to Fischer’s conduct. The jury is able to gauge the credibility of the evidence and determine the extent of injuries and damages, and it is proper for the jury to accept part, without accepting all, of a plaintiffs claimed damages. See Nesseth v. Omlid, 1998 ND 51, ¶¶ 14-15, 574 N.W.2d 848. Because the jury could have logically and consistently found on the evidence presented that Anderson incurred $3,000 of past economic loss but did not meet the medical expense threshold, the jury verdict in this case was logical and probable and was not irreconcilable or clearly contrary to the evidence.

Ill

[¶ 10] The Andersons claim the trial court abused its discretion in refusing to grant a new trial on the ground there is insufficient evidence to support the jury’s verdict. Under ND.R.Civ.P. 59(b)(6) a new trial can be granted when a jury verdict is unsupported by sufficient evidence or is contrary to the law. The trial court cannot grant a new trial merely because it disagrees with the jury’s verdict, when the evidence is nearly balanced or where different minds could reach different conclusions. Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338, 344 (N.D.1984). On appeal, we review the evidence in the light most favorable to the verdict, and the trial court’s refusal to grant a new trial based upon insufficiency of the evidence will not be disturbed unless a manifest abuse of discretion is shown. Id. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. Braunberger v. Interstate Engineering, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904.

[¶ 11] The trial court gave the following relevant instructions to the jury, without objection by either party:

The law requires that fault be apportioned among those parties and other persons you have found to be at fault in causing the Plaintiffs damages.
Defendants’ and other persons’ fault may consist of negligence. Plaintiffs fault may consist of failure to mitigate damages.
If, by your answers, you have determined that two or more persons are at fault and that their fault was a proximate cause of Plaintiffs damages, you must apportion fault among them.
A patient has a duty to provide material information upon request and to follow reasonable advice given by the physician.
If, following the defendant’s wrongdoing, the physical condition of the plaintiff becomes aggravated due to natural causes unrelated to the injury or by any conduct of a third person unrelated to the defendant’s wrongdoing, the defendant cannot be held liable for the aggravated condition.
Defendant, Allen Fischer, admits he was at fault in causing the motor vehicle collision. Allen Fischer asserts that the plaintiff, Bryce Anderson, was not injured in the manner or to the extent claimed. Fischer also asserts that the plaintiff, Bryce Anderson, failed to mitigate his damages by failing to follow the advice and recommendations of his doctors. He denies liability for the damages claimed by Bryce and Tienne Anderson not caused by the motor vehicle collision or damages which could have been avoided if Bryce Anderson had followed medical advice.

These unopposed jury instructions became the law of the case. See Grenz v. Kelsch, 436 N.W.2d 552, 554 (N.D.1989). The jury was instructed that in making a comparative fault analysis it could consider Fischer’s negligence in causing the automobile accident and Bryce Anderson’s fault, if any, in failing to follow his doctors’ advice or in otherwise failing to mitigate his damages.

[f 12] The Andersons introduced evidence to demonstrate that all of their claimed economic and noneconomic damages were proximately caused by Fischer’s negligence m causing the automobile accident. Fischer introduced evidence that most of the damages claimed by the Andersons were proximately caused by Bryce Anderson’s failure to follow his doctors’ prescribed treatments and that some of the claimed injuries were the result of work stresses or other factors unrelated to the automobile accident.

[¶ 13] There is record evidence that on several occasions Bryce Anderson failed to complete physical therapy and chiropractic regimens prescribed by his treating doctors and that his failure resulted in a continuation of pain and other injury symptoms which, by following his doctors’ advice, may have been alleviated. There was expert medical opinion that the soft tissue injuries sustained by Bryce Anderson in the automobile accident should have resolved within five weeks to six months of the accident and that Anderson’s pain and other symptoms beyond that time could be explained by causes unrelated to the accident, such as daily stress and deconditioning.

[¶ 14] After reviewing the record evidence in the light most favorable to the verdict, we conclude the jury’s verdict is not against the weight of the evidence but is supported by substantial evidence. As a result the trial court did not abuse its discretion in denying the Andersons’ motion for a new trial for insufficiency of the evidence, and we, therefore, affirm the judgment and the order denying a new trial.

[¶ 15] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., and LAWRENCE A. LECLERC, D.J., concur.

[¶ 16] LECLERC, D.J., sitting in place of KAPSNER, J., disqualified.

      . Allen Fischer died on January 7, 2000, and Karen Jacobson, personal representative of his estate, has been substituted as party defendant.

      . Under N.D.C.C. § 32-03.2-02 a person is barred from recovering any damages if that person’s “fault was as great as the combined faull of all other persons who contribute to the injury.’’


author: GILBERTSON, Justice SABERS, Justice

text:
    2001 SD 22
    A. Joseph SEJNOHA and James J. Sejnoha, a/k/a Jim Sejnoha, Plaintiffs and Appellants, v. CITY OF YANKTON, Defendant and Appellee.
    No. 21465.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2001.
    Decided Feb. 28, 2001.

      C.E. Light, Light Law Office, Yankton, for plaintiffs and appellants.
    James T. Goetz of Goetz & Klimiseh, Yankton, for defendant and appellee.
   GILBERTSON, Justice

[¶ 1.] Joe and Jim Sejnoha (Sejnohas) purchased real estate from Yankton County (County) at a tax sale. At the auction, they were informed that the City of Yank-ton (City) claimed special assessments against a number of lots, including those lots purchased by Sejnohas. After negotiating with City, Sejnohas paid the assessments. Subsequent to that payment, in a separate lawsuit, this Court held that City’s assessments did not survive County’s tax sale. Sejnohas sued City to recover the payments made under the settlement. The trial court granted a directed verdict in favor of City. Sejnoha’s appeal and we affirm.

FACTS AND PROCEDURE

[¶ 2.] Jim Sejnoha is a building contractor in Yankton, South Dakota. His father, Joe, develops real estate, also in Yankton. On October 22, 1988, County conducted an auction of certain parcels of real estate on which County held liens for unpaid real property taxes. County employed Richard Payne, an independent auctioneer, to conduct the auction. At the auction, Payne informed the bidders that City claimed special assessments on certain lots, and that those lots were being sold subject to those assessments. A sheet was distributed to the bidders, listing the assessment on each property. At this auction, Jim, on behalf of himself and Joe, was the high bidder on twenty-five lots. City claimed a total of $124,051.60 in assessments against the lots purchased by Sejnohas. At the time of the bidding, Sejnohas felt City would negotiate the amount it claimed.

[¶ 3.] Shortly after the auction, Jim was approached by Steve Ellis, another bidder at the auction. Jim was invited to a meeting with Ellis and his lawyer to discuss whether City’s claimed assessments were legitimate. At that meeting, Jim was informed that Ellis’ attorney believed City’s assessments were not valid. Jim informed Joe of the contents of the meeting. Together, they decided not to join in Ellis’ proposed challenge of the assessments. Joe testified that they did not have the time or the money to take part in Ellis’ lawsuit and wanted the title to the property cleared as quickly as possible so it could be developed, dwellings constructed and sold. Therefore, they elected to negotiate a settlement with City. After negotiating for several months, the parties reached a settlement of $84,189.40 on the special assessments, a $39,862 saving for Sejnohas. The final payment on this settlement was paid on August 31, 1990. Once this amount was paid, City approved their development plans and issued the necessary permits. Sejnohas proceeded to develop and sell the lots.

[¶4.] In January of 1995, Joe read about this Court’s decision in Ellis v. City of Yankton, 526 N.W.2d 124, 127 (S.D.1995), where we held that pursuant to SDCL 9-43-53, City’s assessments did not survive County’s tax sale. Sejnohas then contacted an attorney in regards to getting back the $84,189 they had paid City. This lawsuit was filed on October 16, 1995 seeking the rescission of the settlement agreement and return of the sums paid by Sejn-ohas. The lawsuit initially alleged that Sejnohas had been coerced into the settlement with City. On March 18, 1998, Sejn-ohas amended that complaint to instead allege fraud and constructive fraud as bases for rescission of the settlement. A jury trial was commenced on January 25, 2000. After Sejnohas had presented their evidence, they moved to amend their complaint to conform to the evidence to allow rescission based on mutual mistake of law. The trial court denied that motion because the evidence failed to establish mistake of law as a ground for rescission. The trial court also granted a directed verdict in favor of City on Sejnohas’ fraud allegations. Sejnohas appeal from that judgment raising the following issues:

1. Whether Sejnohas established an ev-identiary basis to claim rescission based on mutual mistake of law.
2. Whether the trial court abused its discretion by directing a verdict in favor of the City upon Sejnohas’ claim of fraud.

STANDARD OF REVIEW

[¶ 5.] The denial of a party’s motion to amend the pleadings is reviewed under the abuse of discretion standard. Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D. 1987). We review a directed verdict under the following standard:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

Veeder v. Kennedy, 1999 SD 23, ¶ 25, 589 N.W.2d 610, 617 (quoting Border States Paving, Inc. v. S.D. Dep’t of Transp., 1998 SD 21, ¶ 10, 574 N.W.2d 898, 901) (additional citations omitted).

ANALYSIS AND DECISION

[¶ 6.] 1. Whether Sejnohas established an evidentiary basis to claim rescission based on mutual mistake of law.

[¶ 7.] SDCL 15-6-15(b) provides in relevant part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.

Under this standard, amendment will be allowed so long as the evidence presented supports the amended pleading. The trial court determined that Sejnohas had failed to establish a mutual mistake of law and therefore, denied the motion to amend.

[¶ 8.] A mistake of law will void a contract only when there is a “misapprehension of the law by all parties, all supposing that they knew and understood it and all making substantially the same mistake as to the law....” SDCL 58-4-10(1). We recently discussed this statute in Mattson v. Rachetto, 1999 SD 51, 591 N.W.2d 814. In that case, two attorneys drafted a deed that included an agricultural leaseback provision. After this Court declared a similar leaseback provision void under SDCL 43-32-2, the Mattsons filed for rescission. This Court granted rescission because at the time the contract was signed, both parties were operating under a misapprehension of the law. Id. ¶25, 591 N.W.2d at 819.

[¶ 9.] Sejnohas note that according to our decision in Ellis, City was obviously mistaken as to its ability to collect the assessments. Sejnohas further assert they assumed that City had the legal right to collect the assessments and therefore, they likewise misapprehended the law. Sejnohas claim that because both parties were mistaken as to the law, they are entitled to rescission under SDCL 53^4-10 and our decision in Mattson. We do not agree.

[¶ 10.] Sejnohas argument fails because they knew there was a serious legal question as to the ability of City to collect the assessments. They knew, before they purchased the lots, that City claimed assessments against those lots. Joe attended a meeting with Steve Ellis and his attorney shortly after the auction. Ellis informed him that he would likely be challenging City’s authority to collect the assessments. At the very least, this meeting put Sejnohas on notice that City’s claims may not have been valid. Sejnohas had the opportunity to join that lawsuit, and receive its subsequent benefits, but they consciously decided not to, as they did not want to tie up the lots for the duration of a lawsuit. Instead, they chose to negotiate with City, eventually reaching a settlement. It was only after they read the Ellis decision that Sejnohas cried foul. This conscious and deliberate decision to negotiate in light of a debatable legal question, and receive the corresponding benefits distinguishes this appeal from Matt-son. In that case, neither the Mattsons nor the Rachettos were aware that agricultural leases for longer than twenty years were invalid under SDCL 43-32-2.

[Wjhere the risk of the existence of some fact or legal principle or the occurrence of some event is consciously considered by both parties in agreeing upon the terms of a compromise agreement, and one of the parties turns out to have been mistaken and to have overestimated or underestimated his chances of being correct, the compromise and settlement is not invalid on the ground of mistake.

15A AmJur2d Compromise and Settlement § 33 (1976). Clearly, Sejnohas were aware that the validity of the assessments was in doubt. They negotiated those assessments at substantial savings in time and dollars, assuming the assessments were valid. They simply overestimated their chances of being correct on that assumption.

Persons enter into land transactions for a multitude of reasons. A common inducement for such a course of action is the hope of financial gain ... [0]ften the hope for gain fades into the reality of an investment gone sour and a loss incurred. At such a point, it is not the function of the judiciary to require [another] party not responsible for the result, to rescue the disappointed investor from “what may in retrospect appear to have been a bad bargain.”

Estes v. Millea, 464 N.W.2d 616, 620 (S.D.1990) (citing Cook v. Rezek, 296 N.W.2d 731, 733 (S.D.1980)). See also Jameson v. Jameson, 1999 SD 129, ¶20, 600 N.W.2d 577, 582. The decision to settle was made solely by Sejnohas knowing they had the option of litigating their disputed claim in court.

[¶ 11.] This Court has consistently indicated it favors the compromise and settlement of disputed claims outside of court. Lewis v. Benjamin Moore & Co., 1998 SD 14, ¶ 8, 574 N.W.2d 887, 888; Parkhurst v. Burkel, 1996 SD 19, ¶ 12, 544 N.W.2d 210, 212. Rescission of such compromise agreements is an equitable remedy, which should only be granted in extraordinary circumstances. Mattson, 1999 SD 51, ¶ 17, 591 N.W.2d at 818. Additionally, a party seeking equity must have clean hands, and if not, the party “should be left in the position in which the court finds him.” Talley v. Talley, 1997 SD 88, ¶ 29, 566 N.W.2d 846, 852. Sejnohas consciously disregarded their legal right to challenge the assessments. They received the very benefit they sought from the settlement, the immediate use of the lots. Now, some ten years after the agreement, they claim they are entitled not only to that original benefit received, but also to the settlement monies they paid to receive that benefit. Their hands are hardly clean so as to entitle them to the extraordinary relief they seek. The equities of this case point towards the enforcement of the settlement agreement rather than its rescission.

[¶ 12.] As the evidence introduced by Sejnohas failed to establish that they were entitled to rescission on the grounds of mutual mistake of law, the trial court did not abuse its discretion when it denied the motion to amend their complaint.

[¶ 13.] 2. Whether the trial court abused its discretion by directing a verdict in favor of the City upon a claim of fraud.

[¶ 14.] Sejnohas also claim they are entitled to rescission under SDCL 53-4-5 and SDCL 53-4-6 because they were fraudulently induced to settle with city. SDCL 53-4-5 provides in relevant part:

Actual fraud in relation to contracts consists of any of the following acts committed by a party to the contract, or with his connivance, with intent to deceive another party thereto or to induce him to enter into the contract:
(2) The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believe it to be true....

Sejnohas provided no testimony or other evidence to show that City’s assertions were made “in a manner not warranted by the information of the person making it.” After Joe and Jim Sejnoha testified, they rested their case. There was no testimony of what City officials knew at the time of the settlement. Neither was there testimony as to whether the statements made by City officials were warranted. It is Sejnohas’ burden to prove each element of a fraud claim by a preponderance of the evidence. They cannot carry this burden when they introduced no evidence of whether City’s assertions were made in an unwarranted manner.

[¶ 15.] Furthermore, it is well settled that fraud requires a misrepresentation of fact. Sabhari v. Safari, 1998 SD 35, ¶ 17, 576 N.W.2d 886, 892. City’s assertion that the assessments were valid liens on the lots was clearly a representation of law. While these representations were later determined to be incorrect, no claim of fraud can be maintained on a misrepresentation as to what the law would allow or require. 37 AmJur2d Fraud and Deceit § 73 (1968). “One who does not withhold or misstate the facts cannot be adjudged guilty of fraud simply because the courts finally decide the law to be other than he claimed it to be” Id. Sejnohas have presented no evidence that City misstated any fact, hence their claim of actual fraud cannot survive.

[¶ 16.] Sejnohas also claim they are entitled to rescission based on constructive fraud, as defined in SDCL 53-4-6. That statute provides that constructive fraud exists: “[i]n any breach of duty which, without any actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him, by misleading another to his prejudice.... ” SDCL 53-4-6(1). To recover on this claim, Sejnohas must establish that a duty existed between themselves and City.

[¶ 17.] Sejnohas have introduced no evidence that would establish such a duty. Sejnohas testified that they simply assumed City had the right to collect the assessments. While Sejnohas concede that they were “at arms length” during their negotiations with City, they claim that a duty existed because they relied on City’s assertions. Sejnohas have cited no case law to support this proposition, and the reason is clear. We have often stated that:

[Fiduciary duties are not inherent in normal arm’s-length business relationships, and arise only when one undertakes to act primarily for another’s benefit. The law will imply such duties only where one party to a relationship is unable to fully protect its interest and the unprotected party has placed its trust and confidence in the other.

Daktronics, Inc. v. McAfee, 1999 SD 113, ¶ 23, 599 N.W.2d 358, 363 (citing High Plains Genetics Research, Inc. v. J.K. Mill-Iron Ranch, 535 N.W.2d 839, 842 (S.D.1995) (additional citations omitted)) (alteration in original). City clearly did not undertake to act primarily for Sejn-ohas’ benefit. Even if Sejnohas had placed their trust and confidence in City,

One party cannot transform a business relationship into one which is fiduciary in nature merely by placing trust and confidence in the other party. There must be additional circumstances, or a relationship that induces the trusting party to relax the care and vigilance which he would ordinarily exercise for his own protection.

Id. ¶ 24 (quoting Ainsworth v. First Bank of South Dakota, 472 N.W.2d 786, 788 (S.D.1991)). Sejnohas have failed to show any additional circumstances that caused them to relax their vigilance to protect their rights besides their desire to clear the title to the lots as quickly as possible so they could be sold. Because no duty existed between City and Sejnohas, their claim of constructive fraud must fail.

[¶ 18.] We affirm.

[¶ 19.] MILLER, C.J., and AMUNDSON and KONENKAMP, JJ., concur.

[¶ 20.] SABERS, J., concurs in result.

SABERS, Justice

(concurring in the result).

[¶ 21.] I think the majority opinion errs in stating the issues, causing it to confuse the law even though it eventually reaches the right result.

[¶ 22.] 1. ■ The first issue is whether it was error to deny the motion to amend the complaint. It was, because amendment is liberally permitted unless it is prejudicial. Therefore, the trial court and the majority opinion err here because no prejudice would have resulted from granting the motion.

[¶ 23.] 2. The second issue is whether the trial court erred in denying relief to Sejnoha based on mutual mistake of law.

[¶ 24.] The trial court and majority opinion get this one right even though they do it for the wrong reason, i.e., because they denied the motion to amend the pleading, they now say Sejnoha failed to establish a mutual mistake. In other words, they have the cart before the horse, but at least they have them going into the right barn.

[¶25.] 3. The third issue is whether the trial court abused its discretion in directing a verdict for City on a claim of fraud. It did not, and I concur in the result of affirmance.

      . Sejnohas call our attention to no case decided by this Court prior to our decision in Ellis which would have provided a definitive answer to this question at the time Sejnohas were contemplating a compromise settlement with City. An examination of Ellis shows it was a case of first impression on this statutory question.

      . Final payment on the compromise settlement was made to City on August 31, 1990 thus paving the way for development of the property and ultimate sale to the public by Sejnohas. Our decision in Ellis did not become final until February 16, 1995 prior to which the claimed assessments operated as a cloud upon the title to the Ellis property thus precluding its resale to the public.

      . Moreover, all evidence establishes City believed its legal position to be correct and consistently maintained that position until it was ultimately unsuccessful in this Court.


author: KONENKAMP, Justice.

text:
    2001 SD 24
    Debrah K. SAUER, Appellant, v. TIFFANY LAUNDRY & DRY CLEANERS, Employer and Appellee. Crum & Forster Commercial Insurance Companies, Insurer Defendants and Third-Party Petitioners and Appellees, v. Rockwood Insurance Companies, Third-Party Insurer.
    No. 21276.
    Supreme Court of South Dakota.
    Argued Oct. 24, 2000.
    Decided Feb. 28, 2001.

      Rory King of Siegel, Barnett & Schütz, Aberdeen, for appellant Debrah K. Sauer.
    Kenneth L. Chleborad of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, for appellees Tiffany Laundry and Rockwood Insurance Companies.
    David A. Gerdes of May, Adam, Gerdes & Thompson, Pierre, for appellees Crum & Forster Insurance Company.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we consider whether an employee who developed skin and bronchial problems coincident with her employment in a commercial laundry suffered from an occupational disease. The Department of Labor denied her claim, concluding that the employee could not meet the statutory definition of an occupational disease because her condition was not peculiar to her occupation. On appeal, the circuit court affirmed, and we uphold that decision.

Background

[¶2.] Debrah Sauer is a lifelong resident of Aberdeen, South Dakota. After graduating from high school, she pursued different jobs, including employment as a waitress, a store clerk, and a telephone representative. In August 1986, she began working at Tiffany Laundry. Her duties included folding laundry, helping with the dryer, and feeding wet sheets into a mangle. Before her employment with Tiffany, her health history was unremarkable. She had never been to a dermatologist or an allergist and had no prior episodes of asthma or respiratory difficulty.

[¶ 3.] A month after she started working at Tiffany, she noticed a rash on her hand. She told her supervisor, who recommended Benadryl cream. Sauer later testified that she knew of other Tiffany employees who also developed rashes. Her condition, however, became more complicated. In November and December 1986, the rash on her hand transformed into hives. She sought treatment from her family physician. He prescribed steroids, but her ailment continued to deteriorate. Hives covered her face and caused her lips and eyes to swell.

[¶ 4.] In March 1987, Dr. Redmond, an Aberdeen dermatologist, examined Sauer and diagnosed uticaria, the medical term for hives. He prescribed a different medication. As Sauer felt her condition was related to bleach exposure at Tiffany, Dr. Redmond spoke with her supervisors about keeping her away from bleach products. Sauer continued to experience problems at work, but reported that her symptoms would abate while she was away from the laundry. At work, in addition to the hives, she experienced breathing difficulties and tightness in her throat. Dr. Redmond could not control SaueFs condition with medication and eventually recommended that she resign. In July 1987, she left her employment with Tiffany.

[¶ 5.] Because Sauer’s health problems were attributed to bleach, all such products were removed from her household. Approximately two months after she left Tiffany, her symptoms subsided. She was symptom free until January 1988, when she experienced another outbreak after a relative who worked at Tiffany visited her home. Sauer suffered hives and tightness in her throat. She believed that it was caused by the presence of bleach on the relative’s clothing. After this encounter, Sauer stayed away from bleach products and was generally asymptomatic.

[¶ 6.] In January 1989, Sauer began working as a dietary assistant at the Aberdeen Living Center. From January to May, she worked in the kitchen and dining area without incident. In May, she noticed a strong smell of bleach when janitors were cleaning the dining room floor. She testified that after noticing this smell her neck started to swell and she began to get “little hives.” She went home for the afternoon. Later, she told Dr. Redmond of her exposure. She quit her job per his advice and has not been employed since. From 1989 her condition worsened to a point where she could no longer leave home. According to Sauer, the presence of bleach, chlorine, or strong chemicals will cause a reaction.

[¶ 7.] Sauer filed a claim for workers’ compensation benefits on March 6, 1989. She later amended her claim to seek total disability benefits for an occupational disease. In a hearing before the Department, Sauer, her parents, a vocational specialist, and her dermatologist testified. Her dermatologist referred to a consultation he had with Dr. Luzier, an Aberdeen allergist, regarding the case. Both the employer and the insurer objected. They asked that the matter be kept open to take further depositions. They also requested that the Department allow an independent consultation by allergist, Dr. Morris. Both Dr. Morris and Dr. Luzier suggested further testing in an environmental chamber.

[¶ 8.] The testing took place at the Allergy Respiratory Institute of Colorado. In the environmental chamber, bleach chemicals were released, but the bleach smell was masked. Sauer’s uticaria could not be scientifically reproduced when she was exposed to bleach as opposed to neutral substances. According to Dr. Straight, who evaluated the results, the testing “effectively ruled out plain sodium hypochlorite bleach as a cause of her problem.” The evaluation concluded that many agents at a commercial laundry “could ... irritate preexisting asthma, but would not be expected to have caused it.” After the testing, the Department’s record was supplemented with affidavits and depositions. In its findings of fact and conclusions of law, the Department ruled that Sauer had failed to show that she had a disease that was peculiar to her occupation, and thus she did not suffer from an occupational disease. Her appeal in the circuit court was affirmed. She now appeals to this Court.

Analysis and Decision

[¶ 9.] Sauer asserts that she is totally disabled by her occupational disease. Claimants have the burden of proving all elements necessary to qualify for compensation. Tischler v. United Parcel Service, 1996 SD 98, ¶ 25, 552 N.W.2d 597, 602 (quoting Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992))(further citations omitted). See also Kraft v. Kolberg Mfg. Co., 88 S.D. 140, 215 N.W.2d 844, 846 (1974)(recognizing that this same burden exists under the occupational disease chapter) (citations omitted). Those seeking compensation for an occupational disease must prove: (1) they suffer from an occupational disease as defined in 62-8-1(6); (2) they are disabled from performing work in the last occupation in which they were injuriously exposed to the hazards of such disease; and (3) the disease is “due to the nature of [the] occupation or process” in which they were employed before their disablement. See SDCL 62-8-4. Injurious exposure means “that concentration of toxic material which would, independently of any other cause whatsoever (including the previous physical condition of the claimant) produce or cause the disease for which claim is made.” SDCL 62-8-1(4).

[¶ 10.] To recover benefits under SDCL 62-8-4, Sauer must first show that she suffers from an occupational disease. SDCL 62-8-1(6) defines a compensable occupational disease as “a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment....” We must evaluate the evidence presented to the Department to decide whether Sauer is entitled to benefits. She need not establish the requirements with absolute certainty, but recovery may not be granted on mere possibility or speculation. Kraft, 215 N.W.2d at 846 (citations omitted).

[¶ 11.] Sauer believes her chronic uticaria, asthma, and angioedema are “peculiar to her occupation” as a commercial laundry worker. A condition is peculiar to a particular occupation when it “is the result of a distinctive feature of the kind of work performed” by a claimant and others similarly employed. Zoss, 1997 SD 93, ¶ 13, 566 N.W.2d at 845 (citations and internal quotations omitted). Unless the condition is “intrinsic” to an occupation, one does not suffer from an occupational disease. See id. at ¶ 14, 566 N.W.2d at 845. See also Mack v. County of Rockland, 71 N.Y.2d 1008, 530 N.Y.S.2d 98, 525 N.E.2d 744 (1988) (recognizing that an occupational disease is present only when an employee’s medical condition results from “the ordinary and generally recognized risks incident to a particular occupation.”)

[¶ 12.] Sauer testified that other employees at Tiffany suffered from rashes; as such, it was not unusual that she would suffer from a rash. This is the only testimony, however, that Sauer offered to show that her condition is peculiar to the occupation of a commercial laundry worker. See SDCL 62-8-1. In her brief to this Court, Sauer simply states that “her disease is peculiar to her occupation, not the particular workplace” without offering support for this statement. She never established that uticaria, asthma, and angioede-ma are recognized risks for commercial laundry workers. See Zoss, 1997 SD 93, ¶ 14, 566 N.W.2d at 845; see also Mack, 530 N.Y.S.2d 98, 525 N.E.2d at 744.

[¶ 13.] On the other hand, the Department accepted expert medical testimony that this condition was not peculiar to the occupation of laundry workers. The Department considered the deposition testimony of Dr. Morris, an allergist. In his opinion, Sauer suffers from chronic idiopathic uticaria — idiopathic, meaning of unknown cause. Likewise, Dr. Morris noted that chronic uticaria is “a relatively common condition that is usually not caused by any allergy.” His conclusion was confirmed by environmental chamber testing recommended by both Sauer’s and Tiffany’s experts. After this evaluation, even Sauer’s treating dermatologist conceded that her uticaria “is idiopathic at present.” In that testing, Sauer’s reactions could not be differentiated between exposures to bleach or distilled water. As for her asthma type symptoms, Dr. Morris ascribed those to exercise or cold air, common to four to five percent of the population.

[¶ 14.] While Sauer’s treating allergist and dermatologist continued to opine that bleach may have triggered a pre-existing tendency towards utiearia or asthma, the Department evidently found that Dr. Morris’s conclusions were more convincing. Under this record, we cannot override that finding. Fact finders are free to reasonably accept or reject all, part, or none of an expert’s opinion. See Goebel v. Warner Tramp., 2000 SD 79, ¶ 33, 612 N.W.2d 18, 27 (citations omitted). Sauer offered insufficient evidence to show that her condition was “peculiar to her occupation.” See SDCL 62-8-1(6); SDCL 62-8-4. At best she presented a hypothesis that some environmental circumstance in her workplace triggered a preexisting asymptotic condition. Occupational disease must be attributable to conditions particular to an occupation, rather than conditions coincidental to a workplace. See Zoss, 1997 SD 93, ¶ 11, 566 N.W.2d at 844 (citations omitted).

[¶ 15.] As Sauer has not carried her burden of proving that she suffers from an occupational disease, we affirm the Department’s decision and refrain from addressing the other requirements for recovery.

[¶ 16.] Affirmed.

[¶ 17.] MILLER, C.J., and SABERS, AMUNDSON, and GILBERTSON, JJ., concur.

      .It is not clear why this case took so long to move through the system. The petition was filed in March 1989; the hearing was conducted in April 1994; after the hearing the matter was suspended so that Sauer could undergo further tests and additional follow-up discovery could be conducted; the Department entered its written decision in June 1998; and, on appeal, the circuit court heard the matter and issued a bench decision in June 1999. The case was appealed to this Court and oral argument was heard on October 24, 2000.

      . The environmental chamber is a recent development in the treatment and diagnosis of allergies. This chamber allows a physician to evaluate a patient while controlling the content of the air. During this process, the physician can isolate and test for sensitivities to various substances.

      . Our standard of review is governed by SDCL 1-26-36; Sopko v. C & R Transfer Company, Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citations omitted); Zoss v. United Building Centers, Inc., 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843. But see SDCL 15-6-52(a) (as amended effective July 1, 2000).

      . Angioedema: a condition characterized by swelling in areas of the skin, mucous membranes, or viscera. Taber’s Cyclopedic Medical Dictionary (ISth Ed. 1985).

      . When the evaluation in the environmental chamber eliminated the theory that Sauer suffered from a bleach allergy, Dr. Luzier opined that the uticaria might be related to Sauer's thyroid disorder.