text:
    2003 ND 7
    STATE of North Dakota, the North Dakota Department of Transportation, and its Director David A. Sprynczynatyk, Plaintiffs, Appellants, and Petitioners, v. GRATECH COMPANY, LTD., Defendant, Appellee, and Respondent. American Arbitration Association, Defendant, and The Honorable Bruce B. Haskell, Judge of the District Court, South Central Judicial District, Respondent.
    No. 20020211.
    Supreme Court of North Dakota.
    Jan. 17, 2003.

      Charles S. Miller, Jr., Fleck, Mather & Strutz, Bismarck, N.D., for appellants.
    Ronald G. Schmidt (argued), Schmidt, Schroyer & Moreno, P.C., Rapid City, S.D., and Jack McDonald (appeared), Wheeler Wolf, Bismarck, N.D., for appel-lee.
   MARING, Justice.

[¶ 1] The State of North Dakota, the North Dakota Department of Transportation, and David Sprynczynatyk, Director of the Department of Transportation (collectively “the State”), appealed from a district court order dismissing the State’s action seeking a declaratory judgment that Gratech Company was not entitled to arbitrate its claim against the State and that the arbitrators lacked jurisdiction to arbitrate the claim. The State also sought a stay pending appeal and a supervisory writ directing the district court to vacate its order and to permanently enjoin the arbitration proceedings. We granted a temporary stay of the arbitration proceedings while this appeal is pending. We conclude the arbitrators had jurisdiction to determine whether Gratech had timely filed an administrative claim, and we therefore vacate the temporary stay, deny the application for a supervisory writ, and affirm the order of the district court.

I

[¶ 2] In 1997, the State awarded a contract to Gratech on a highway construction project. During construction Gratech encountered difficult soil conditions, and a dispute arose whether certain work was common excavation covered under the contract or was additional, unforeseen work entitling Gratech to extra compensation. The project was completed on November 23, 1999, and accepted by the State on December 28, 1999. On June 30, 2000, Gratech’s president wrote to the project engineer requesting that the parties meet to discuss Gratech’s claim that it was owed additional sums for unforeseen work on the project.

[¶ 3] The State sent a final estimate for the project to Gratech by certified mail on August 15, 2000. The cover letter enclosed with the final estimate stated final payment would be withheld until Gratech submitted certain haul road releases, pit releases, and “DBE Participation Certificates.” The State withheld payment of over $83,000 until these documents were provided. The final estimate did not address payment for the alleged unforeseen work.

[¶ 4] On April 9, 2001, Gratech’s president wrote to the State advising that all required releases had been provided and requesting a progress payment reducing the retainage to a nominal amount. Gra-tech also reiterated its request that the parties meet to discuss Gratech’s claim that it was owed additional sums for unforeseen work on the project. In response to Gratech’s letter, the State on April 12, 2001, advised Gratech it would process an “intermediate payment” to Gratech reducing the retainage to $5,000. The State also sent Gratech a supplemental final estimate dated April 17, 2001. The State claims that, before it sent the supplemental final estimate to Gratech, it orally advised Gra-tech it would release the additional funds “but that processing the paperwork to pay down the retention would not start any clocks running over again.” Gratech denies this statement was ever made.

[¶ 5] On July 13, 2001, Gratech submitted an administrative claim to the State seeking payment for the additional work. Under N.D.C.C. § 24-02-26.1, before seeking arbitration on a highway construction contract the contractor must submit a written claim for compensation to the State “not later than ninety days after the department has submitted the final estimate to the contractor.” The State denied Gratech’s claim, determining the claim was untimely because it had not been filed within ninety days of the August 2000 final estimate.

[¶ 6] On January 25, 2002, Gratech filed an arbitration complaint with the American Arbitration Association seeking payment for the additional work. The State moved to dismiss the arbitration, arguing the arbitrators lacked jurisdiction because Gratech had failed to comply with the statutory requirements for arbitration by failing to file a timely administrative claim under N.D.C.C. § 24-02-26.1. Gra-tech argued that the April 2001 supplemental final estimate was the “final estimate” for purposes of N.D.C.C. § 24-02-26.1, and that its administrative claim was timely filed within ninety days. The arbitrators found that the April 2001 document was the relevant final estimate and denied the State’s motion to dismiss.

[¶ 7] The State then brought this action in district court seeking a stay of the arbitration proceedings and a declaratory judgment determining that the arbitrators lacked jurisdiction over Gratech’s claim. The district court granted a temporary stay. By written order dated July 31, 2002, the court determined the arbitrators had jurisdiction to determine whether Gra-tech had timely filed its claim. Accordingly, the district court vacated the temporary stay and dismissed the declaratory judgment action.

[¶ 8] The State appealed from the district court order dismissing its action. The State also sought a stay pending appeal and a supervisory writ directing the district court to vacate its order and to permanently enjoin the arbitration proceedings. On August 21, 2002, we ordered that the arbitration proceedings be stayed pending further order of this Court. .

II

[¶ 9] The sole question on appeal is whether the arbitrators had the authority to determine whether Gratech had timely submitted its administrative claim and was therefore entitled to demand arbitration.

[¶ 10] Under N.D.C.C. § 24-02-26, all disputes arising out of a highway construction contract must be submitted to arbitration:

All controversies arising out of any contract for the construction or repair of highways entered into by the director must be submitted to arbitration as provided in this chapter and chapter 32-29.2. Any person who voluntarily enters into a contract for the construction or repair of highways must be considered as having agreed to arbitration of all controversies arising out of that contract.

Section 24-02-31, N.D.C.C., specifies that “[t]he arbitrators shall determine all controversies between the parties growing out of the contract.”

[¶11] Section 24-02-26.1, N.D.C.C., provides certain conditions precedent before a contractor may demand arbitration:

In addition to the provisions of section 24-02-30, full compliance by a contractor with the provisions of this section is a condition precedent to the contractor’s right to demand arbitration....
Any person submitting a claim for compensation under this section, personally or on behalf of another person or entity, must do so in writing, not later than ninety days after the department has submitted the final estimate to the contractor....
The director shall act on the claim within sixty days after the claim is served upon the director. The contractor and the director may negotiate a supplemental agreement for the claim items that are accepted by the director, and the director shall immediately pay the contractor for any additional compensation resulting from the supplemental agreement. The contractor may demand arbitration on the remaining claim items within ninety days after the contractor has been notified of the director’s action on the claim.

Although the statute specifies a claim must be filed within ninety days of submission of the final estimate, the term “final estimate” is -not defined in our statutory scheme.

[¶ 12] As a matter of public policy, the arbitration process is strongly favored in this state. See, e.g., O & K Glass Co. v. Innes Constr. Co., 2000 ND 56, ¶ 7, 608 N.W.2d 236; Superpumper, Inc. v. Nerland Oil, Inc., 1998 ND 144, ¶ 9, 582 N.W.2d 647; Allstate Ins. Co. v. Nodak Mut. Ins. Co., 540 N.W.2d 614, 619 (N.D. 1995); Carlson v. Farmers Ins. Group, 492 N.W.2d 579, 582 (N.D.1992); State v. Stremick Constr. Co., 370 N.W.2d 730, 732 (N.D.1985). In light of this strong public policy, we have concluded that, where there is a broad arbitration clause and no exclusion clause, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Allstate, at 619. Arbitrators, acting under the authority granted to them by a contract or statute, unless expressly limited by the terms of the contract or statute, are the judges of both the law and the facts. Id. at 617; McKibben v. Grigg, 1998 ND App 5, ¶ 20, 582 N.W.2d 669. When the parties have agreed or are bound by statute to submit contractual disputes to arbitration, the role of the court is very limited. Stremick, at 734; West Fargo Pub. Sch. Dist. v. West Fargo Educ. Ass’n, 259 N.W.2d 612, 619 (N.D.1977); McKibben, at ¶ 6. The question whether the dispute is arbitrable is for the arbitrators, not the district court, to determine. See Superpumper, at ¶ 9; Stremick, at 735.

[¶ 13] In this case, the arbitrators were faced with determining the effect of multiple final estimates upon the contractor’s duty to file an administrative claim. The question whether Gratech had timely filed its administrative claim with the State turned upon disputed facts and interpretation of the construction contract.

[¶ 14] The State claims the August 2000 document was the “final estimate,” and argues that Cal Gendreau, the Construction Services Engineer for the Department of Transportation, orally advised Gratech’s president that issuance of the supplemental final estimate in April 2001 “would not start any clocks running over again.” Gratech’s president in an affidavit specifically denied Gendreau had made any such statement.

[¶ 15] Gratech argues the April 2001 document constitutes the final estimate, and points to language in the construction contract governing final estimates and semifinal estimates. Section 109.05 of the contract provides, in pertinent part:

After 90% of the work has been completed and:

1) all pit releases, receipts of payment, and haul road releases are on file with the Department; and
2) all payrolls have been submitted and are up to date; and
3) the remaining work can be completed without accrual of liquidated damages; and
4) the Contractor is making a diligent effort to complete the work remaining on the project;
the Engineer may prepare a semifinal estimate for the work completed and retain not less than 1% of the dollar amount of work completed. The remainder, less all previous payments, will then be certified for payment.
After all original Contract work is completed and conditions 1) through 4) above have been met, the Engineer may prepare a semifinal estimate for the work completed and retain less than one percent of the dollar amount of work completed. The actual amount of re-tainage must be approved by the Construction Engineer.

Section 109.08 of the contract provides:

When the Project has been accepted as provided in Section 105.13, the Engineer will prepare the final estimate for work performed. After approval of the final estimate by the Contractor, the entire sum due will be paid after deducting all previous payments and all amounts owed to the Department or to be retained or deducted under the Contract provisions.
All prior partial estimates and payments shall be subject to correction in the final estimate and payment.
The Contractor may be required to furnish proof of compliance with all laws which directly or indirectly apply to the work before any partial or final payment is made.

Gratech argues that these contractual provisions dictate that a final estimate could not be issued until all pit releases and haul road releases had been filed with the Department. It is undisputed that when the August 2000 final estimate was sent to Gratech the required pit releases and haul road releases had not all been filed. At best, the contract provisions regarding final estimates are ambiguous, and there clearly were fact issues and contract interpretation issues raised by the issuance of multiple final estimates in this case.

[¶ 16] As previously noted, the arbitrators are statutorily authorized to “determine all controversies between the parties growing out of the contract,” N.D.C.C. § 24-02-31, and it is for the arbitrators to determine whether a claim for arbitration has been timely filed. See Stremick, 370 N.W.2d at 735. As we explained in Allstate, 540 N.W.2d at 617, “procedural questions, such as the legal effect of statutes of limitations, unless expressly excluded from arbitrability, should be left to the arbitrators once it has been established that the subject matter of the dispute is arbitrable.” We agree with the rationale expressed in Allstate, at 619, that, in light of the strong public policy favoring arbitration, “we see no persuasive reason to place artificial restrictions on the arbitration panel’s authority which are not called for” by the statute mandating arbitration.

[1Í17] We conclude that, like a statute of limitations, timely filing of an administrative claim under N.D.C.C. § 24-02-26.1 is a procedural question which lies within the arbitrators’ statutory authority. Since there is no express exclusion of arbitrability of this issue in either the statutory scheme or the construction contract, we conclude the district court did not err in determining the arbitrators had the authority to decide the issue.

[¶ 18] The State argues that the arbitrators lacked jurisdiction and the district court was required to decide whether Gra-tech had timely filed its claim with the State by N.D.C.C. § 32-29.2-02(2), which provides:

On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, if in substantial and bona fide dispute, must be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

The State contends that, if Gratech failed to file a timely administrative claim in accordance with N.D.C.C. § 24-02-26.1, there is no agreement to arbitrate. Accordingly, the State asserts, the issue is one for the district court under N.D.C.C. § 32-29.2-02(2).

[¶ 19] This issue is a red herring. By statute, all disputes arising out of highway construction contracts must be submitted to arbitration. See N.D.C.C. § 24-02-26. By voluntarily entering into a highway construction contract, the parties are deemed to have agreed to arbitration of all disputes. Id. As we noted in Allstate, 540 N.W.2d at 618, arbitration in highway construction cases “is the explicit choice of the legislature rather than the result of an agreement between the parties.” The requirement in N.D.C.C. § 24-02-26.1 that the contractor file a timely administrative claim is a procedural condition precedent, and does not eradicate the explicit statutory creation of an agreement to arbitrate between the parties. The dispute in this case did not call into question whether there was an agreement to arbitrate.

[¶ 20] We have previously addressed an arbitration panel’s determination that a contractor had failed to comply with the conditions precedent contained in N.D.C.C. § 24-02-26.1. In Byron’s Constr. Co. v. North Dakota State Highway Dep’t, 448 N.W.2d 630 (N.D.1989), a contractor asserted the arbitrators had exceeded their powers in determining the contractor’s claims were barred because the contractor had failed to comply with notice requirements in N.D.C.C. § 24-02-26.1. We noted that a contractor’s failure to give timely notice under N.D.C.C. § 24-02-26.1 “constituted a waiver of its right to claim additional compensation and a failure of the condition precedent to demand arbitration of the matter.” Byron’s, at 634. We applied the “completely irrational” standard of review to the arbitrators’ decision that the contractor had not complied with the conditions precedent under N.D.C.C. § 24-02-26.1. Byron’s, at 632, 634.

[¶ 21] We conclude the arbitrators had jurisdiction to determine whether Gratech had timely submitted its administrative claim and was therefore entitled to demand arbitration.

Ill

[¶ 22] We have considered the remaining issues raised by the parties and find them to be without merit or unnecessary to our decision. We vacate the temporary stay, deny the application for a supervisory writ, and affirm the order of the district court.

[¶ 23] WILLIAM A. NEUMANN, and CAROL RONNING KAPSNER, JJ„ concur.

VANDE WALLE, Chief Justice, concurring specially.

[¶ 24] I continue to believe that when the issue of timeliness of the demand for arbitration arises out of the statutes, it is an issue for the courts to decide but if it arises out of the contract, it is for the arbitrators to determine. Allstate Ins. Co. v. Nodak Mut. Ins. Co., 540 N.W.2d 614, 620 (N.D.1995)(Vande Walle, C.J., dissenting); State v. Stremick Constr. Co., 370 N.W.2d 730, 735 (N.D.1985)(Vande Walle, J., dissenting). It might be argued here that the issue of timeliness of the demand for arbitration arises out of the statute, N.D.C.C. § 24-02-26.1, because of the lack of definition of the term “final estimate.” However, the real issue appears to me to focus on the contract, particularly §§ 109.05 and 109.08 as quoted in the majority opinion, as well as the actions of the parties. Nor am I concerned that N.D.C.C. § 32-29.2-02(2), enacted after the decision in Stremick, but before the decision in Allstate, reserves the issue to the Court. Therefore, by applying the standard I espoused in my dissents in Stremick and Allstate, I reach the same result as does the majority in this instance, and I concur in that result.

[¶ 25] DALE V. SANDSTROM, J„ concurs.

      . In addition to the August 2000 final estimate and the April 2001 supplemental final estimate, the record also indicates an earlier document denoted as a "final estimate” was sent to Gratech by the project engineer on May 23, 2000.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. MARTIN, Retired Circuit Judge

license: Public Domain

text:
    2002 SD 156
    Ann PURDY, natural mother of the Deceased, in her personal capacity and as Administrator of the Estate of Amanda Froistad, Deceased, Plaintiff and Appellant, v. Lisa FLEMING, in her personal and representative capacities; Wendy Cummings, in her personal and representative capacities; and Dr. Frank Buzzetta, (Deceased), Defendants and Appellees.
    No. 22181.
    Supreme Court of South Dakota.
    Argued Oct. 8, 2002.
    Decided Dec. 11, 2002.

      Alicia D. Garcia, Michael Abourezk of Abourezk Law Firm, P.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    .Neil Fulton of May, Adam, Gerdes & Thompson, LLP, Pierre, South Dakota, Attorney for defendants and appellees Fleming and Cummings.

      Catherine M. Sabers, Thomas G. Fritz of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for defendant and appellee Buzzetta.
   GILBERTSON, Chief Justice.

[¶ 1.] Ann Purdy (Purdy), as administrator of the Estate of Amanda Froistad, and as the natural mother of the deceased, brought actions against several defendants relating to the investigation of the abuse and the resultant death of her daughter. The defendants, Dr. Frank Buzzetta (deceased), and Department of Social Service employees, Lisa Fleming and Wendy Cummings, moved for summary judgment, which the trial court granted. Purdy brings this appeal asking us to review the trial court’s order. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Amanda Marie Froistad (Amanda) was born on August 4, 1989. Tragically, when she was five years old, she died in a house fire in Bowman, North Dakota. At the time of Amanda’s death, she was living with her father, Larry Froistad (Froistad) who had physical custody of her. Initially, the police determined the fire to be accidental. However, three years later, Froistad confessed in an Internet chatroom that he had murdered his daughter. Several members of the chat group reported this information to law enforcement officials. After a criminal investigation, it was revealed he had been sexually abusing Amanda for years before her murder. Subsequently, Froistad pled guilty to North Dakota State charges of Class AA Murder and federal charges of sexual exploitation of a minor.

[¶ 3.] The criminal investigation also revealed that social service agencies in both South Dakota and North Dakota had received reports of the abuse of Amanda. These reports were made in July of 1994 at the time Purdy, Amanda’s mother, had custody of her daughter in South Dakota. During this period, Amanda’s parents shared custody of Amanda, with Froistad having custody during the school year and Purdy having custody during the summer.

[¶ 4.] After Amanda’s day care provider told Purdy that she should seek professional counseling for Amanda because of Amanda’s aggressive behavior, Purdy brought Amanda to Liz Thorn, M.A., a psychologist. During the course of this initial interview, Amanda revealed to Thorn that her dad had been touching her genital area with his hands and with “his a stick” [sic]. As a result of these disclosures, Thorn referred Amanda to the South Dakota Department of Social Services.

[¶ 5.] On approximately July 13, 1994, Wendy Cummings (Cummings), a Department of Social Service supervisor, assigned Amanda’s case to Lisa Fleming (Fleming). After interviewing Amanda, Fleming relayed to Purdy the information she received from Amanda. The details of this conversation between Fleming and Purdy are disputed. Purdy claims Fleming told her that Amanda did not repeat her allegations of sexual abuse and that she sounded like “an angry child.” However, Fleming testified that Amanda indicated possible sexual abuse but did not provide confirming details. Whatever the case, Fleming and Cummings believed that South Dakota lacked jurisdiction for any abuse and neglect or criminal action, because it was their belief that the alleged abuse occurred in North Dakota when Froistad had legal and physical custody of Amanda. They, therefore, referred the information obtained in the interview to North Dakota Social Services. The Department of Social Services in North Dakota believed South Dakota had jurisdiction of this matter because Amanda was visiting in this state with her mother at the time of the referral.

[¶ 6.] Because of Amanda’s allegations against her father, Purdy moved to have the custody arrangement modified in North Dakota. Froistad hired Dr. Frank Buzzetta, a licensed psychologist, to present a custody report. The North Dakota court ordered that the entire family be seen by Dr. Buzzetta prior to the court’s rendering a decision on Purdy’s petition for a change in custody. Dr. Buzzetta’s final recommendation to the North Dakota custody court indicated that he believed that the sexual abuse allegations against Froistad were false. Ultimately, Purdy’s motion to change the custody of Amanda was denied and custody remained as it had originally been set, with Purdy having custody of Amanda only during the summer months.

[¶ 7.] After Amanda’s death and Frois-tad’s confession in the Internet chatroom, Purdy filed claims against Fleming and Cummings, under state wrongful death and survival causes of actions. Purdy also brought claims against Cummings alone for negligent hiring, training, and supervision. She additionally presented a claim that Amanda’s substantive due process right of bodily integrity under the Fourteenth Amendment was violated.

[¶ 8.] Furthermore, Purdy brought claims against Dr. Buzzetta because he was the author of the report to the North Dakota court recommending that custody should remain unchanged. Purdy’s claim against this Defendant alleged a cause of action for wrongful death, claiming Dr. Buzzetta had breached various duties owed to Amanda, including a duty to report suspected abuse.

[¶ 9.] All three of the defendants moved for summary judgment, which the trial court granted. The trial court found that the claims against Dr. Buzzetta were barred based upon the statute of limitations and good faith immunity. Summary judgment for the state claims was granted in Fleming and Cummings’ favor based on Purdy’s failure to give notice within 180 days of injury. Additionally, the trial court granted summary judgment on the federal claim because of qualified immunity.

[¶ 10.] Purdy appeals the grant of summary judgment in favor of the South Dakota Department of Social Services defendants, raising the following issues for appeal:

1. Whether Purdy failed to comply with the notice requirements of SDCL 8-21-2 and the applicable statute of limitations.

2. Whether Fleming and Cummings are entitled to good faith immunity under SDCL 26-8A-14.

8. Whether Cummings is entitled to sovereign immunity from Purdy’s negligent supervision, hiring, and training claim.

4. Whether Purdy’s federal claim under 42 USC § 1983 is barred by qualified immunity.

Purdy appeals the grant of summary judgment in Dr. Buzzetta’s favor, raising the following issues for appeal:

1. Whether the causes of action against Dr. Buzzetta were barred by the applicable statute of limitations.

2. Whether Dr. Buzzetta is entitled to good faith immunity under SDCL 26-8A-14.

STANDARD OF REVIEW

[¶ 11.] Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791-792 (citing SDCL 15 — 6—56(c)). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Id. (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Id. (citing Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). “Summary judgment will be affirmed if there exists any basis which would support the trial court’s ruling.” Id. (citing Wolff v. SD Game, Fish and Parks Dept., 1996 SD 23, ¶ 32, 544 N.W.2d 531, 537 (citing St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994)) (emphasis added).

[¶ 12.] Our review of the constitutionality of a statute is de novo. Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D.1995)).

ANALYSIS AND DECISION

Claims against Cummings and Fleming

[¶ 13.] 1. Whether Purdy failed to comply with the notice requirements of SDCL 3-21-2 and the applicable statute of limitations.

[¶ 14.] Purdy’s state law claims included actions for wrongful death, claims in' the nature of survival actions, claims for negligence, claims for gross negligence, and claims for negligent hiring, training, and supervision. Cummings and Fleming argue that Purdy did not meet the notice requirements provided for under SDCL 3-21-2. Specifically, this statute provides:

No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

(emphasis added). Purdy concedes that she had not substantially complied with the notice requirement until August of 1998, a date more than three years after Amanda’s death, which occurred on or about May 31,1995. However, Purdy contends that the date of discovery should trigger the 180-day notice period. For this proposition, she cites to Myears v. Charles Mix County, 1997 SD 89, 566 N.W.2d 470. However, that ease dealt with substantial compliance with the content requirement of SDCL 3-21-2, not the time requirement. Myears, 1997 SD 89, ¶¶ 10-12, 566 N.W.2d at 472-73. When the time requirement of this statute has been in dispute, we have continuously held that the date of the injury is the triggering event for the 180-day period. The statute clearly says, “after the injury,” not “after discovery of the injury.” See, e.g., Peterson ex rel Peterson v. Burns, 2001 SD 126, ¶ 39, 635 N.W.2d 556, 570 (stating that SDCL 3-21-2 is an example of a notice statute in which a plaintiff must give 180 days notice after the time of the injury); Holland v. City of Geddes, 2000 SD 71, ¶ 10, 610 N.W.2d 816, 819 (holding that the 180-day period runs from the completion of the continuing injury); Brishky v. State, 479 N.W.2d 489, 493 (S.D.1991) (stating that “notice of the claim must be given to the Attorney General and to the public entity within 180 days after the injury”). We therefore hold that the date of injury was the triggering event that set SDCL 3-21-2’s 180-day time period in motion.

[¶ 15.] Alternatively, Purdy argues that the statute of limitations and statutory notice period were tolled by fraudulent concealment. While she concedes that there is no case law in South Dakota which serves to toll the 180-day notice period of SDCL 3-21-2, she urges us to extend the doctrine of fraudulent concealment to toll this notice of claim provision. Additionally, Purdy argues that there are material facts in dispute that precluded the trial court from ruling that as a matter of law fraudulent concealment did not apply to this case. Purdy charges that there were facts presented from which reasonable people could conclude that Cummings and Fleming fraudulently concealed critical information from Purdy concerning their investigation of the sexual abuse of Amanda. For example, Purdy claims that Fleming told her that Amanda had not discussed with Fleming Froistad’s touching of Amanda on her private parts, although Fleming’s report stated that Amanda did specifically tell Fleming of the touching.

[¶ 16.] Purdy claims that there is an additional material issue in dispute. During her deposition, Fleming claims she told Purdy that she would “forward [the information] to North Dakota for their investigation, if they were going to do that, for them to determine whether or not they were going to do an investigation, because we have no control over that.” On the other hand, Purdy states that Fleming did not tell her that South Dakota Department of Social Services was not responsible for the investigation. Purdy claims that it was her understanding that South Dakota would be coordinating the investigation with North Dakota and that each agency would take appropriate responsibility for its part of the investigation. Purdy further alleges that Fleming did not contact North Dakota to communicate the report of sexual abuse until sometime in September of 1994.

[¶ 17.] Fleming and Cumming’s reply to Purdy’s argument is that there is no evidence they acted to hide any information not already known or readily discoverable by Purdy. They allege that since Purdy was aware of the underlying facts of her cause of action, she cannot claim fraudulent concealment. Purdy was privy to all the information in the North Dakota custody proceeding, including Fleming’s report. Furthermore, Fleming and Cummings charge that Purdy has not produced anything beyond the bare allegations that someone “lied”; nor has she shown that she took any reasonable steps to discover her cause of action.

[¶ 18.] We have previously held that fraudulent concealment may toll the statute of limitations. See Conway v. Conway, 487 N.W.2d 21, 23 (S.D.1992). We find that this doctrine may be extended to a notice of claim provision. In applying this doctrine to a particular set of facts, we first must determine whether a fiduciary relationship existed between the parties. Although it appears that in this appeal Purdy does not allege such a relationship existed, we nonetheless chose to address this issue. “The existence of a fiduciary duty and the scope of that duty are questions of law for the court.” High Plains Genetics Research, Inc. v. J.K. Mill-Iron Ranch, 535 N.W.2d 839, 842 (S.D.1995). Generally, in such a relationship, the “property, interest or authority of the other is placed in the charge of the fiduciary.” Id. (additional citations omitted). In Garrett v. BankWest, Inc., we found that a “fiduciary relationship imparts a position of peculiar confidence placed by one individual in another.” 459 N.W.2d 833, 837 (S.D.1990). Normally, in a fiduciary relationship, one of the parties has a superior power over the other. Id.

[¶ 19.] Such a relationship was not present here. The Department of Social Services investigates hundreds, if not thousands, of cases of child abuse each year. Much of the information it receives is given to other people and agencies in the course of its investigation; thus, Purdy knew that the information she gave to Fleming was not going to be kept confidential. Fleming and Cummings’ primary relationship was not with Purdy. Its primary relationship is with the state in carrying out its goals. Furthermore, the Department of Social Services did not have control over the custody of Amanda. At that time the question of legal custody continued to rest with the court in North Dakota. Amanda was actually living with her mother, not under the supervision of the Department of Social Services. We, therefore, find that a fiduciary relationship did not exist between Purdy and the Department of Social Service workers.

[¶ 20.] In the absence of a fiduciary relationship, fraudulent concealment does not exist simply because a cause of action remains undiscovered, but only when the defendant affirmatively prevents discovery. Bruske v. Hille, 1997 SD 108, ¶ 19, 567 N.W.2d 872, 879 (stating “in the absence of some trust or confidential relationship between the parties there must be some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action.”). A limitations period is not tolled if the plaintiff knew the facts underlying the cause of action or failed to exercise due diligence to discover them. Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 13, 581 N.W.2d 510, 515; Glad v. Gunderson, 378 N.W.2d 680, 682-83 (S.D. 1985). Furthermore, we have previously stated:

In summary judgment proceedings, where the defendant asserts the statute of limitations as a bar to the action, and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations, e.g., fraudulent concealment of the course of action.

Conway, 487 N.W.2d at 23 (citing Kurylas, Inc. v. Brodsky, 452 N.W.2d 111, 117 (S.D. 1990) (additional citations omitted)). Therefore, the burden is on Purdy to demonstrate that material facts are present to support fraudulent concealment.

[¶ 21.] We find that Purdy cannot meet this burden. There is no evidence that Cummings or Fleming acted to hide any information not already known or readily discoverable by Purdy. See Strassburg, 1998 SD 72, ¶ 15, 581 N.W.2d at 515. She was told South Dakota was not going to investigate further and was going to refer the matter to North Dakota, where Frois-tad lived. Additionally, Purdy was privy to all the information presented in the North Dakota custody proceeding. She was actually there while Cummings and Fleming were not. She told the judge about Amanda’s allegations against Frois-tad and the judge also was provided with Liz Thorn’s report in which Thorn substantiates the allegations. Although Pur-dy claims that she believed that someone had “twisted the facts” about Froistad’s potential danger to Amanda, she did not take action until long after the statute of limitations had expired. Since she was at least as aware as Cummings and Fleming of the underlying facts of her cause, of action, Purdy cannot claim fraudulent concealment. As a result, the statute of limitations and notice period of SDCL 3-21-2 were not tolled, and the Circuit Court properly awarded Fleming and Cummings summary judgment.

[¶ 22.] 2. Whether Fleming and Cummings are entitled to good faith immunity under SDCL 26-8A-14.

[¶ 23.] Although, it appears Pur-dy’s causes of action against Cummings and Fleming were properly dismissed under the issue above, she argues that such a conclusion is not final as to preclude examination of her claim under this issue. Although this argument would seem to be incorrect, we nonetheless address Purdy’s “good faith” argument on the merits.

[¶ 24.] Cummings and Fleming argue that they are afforded “good faith immunity” for acts and/or omissions under SDCL 26-8A-14. This statute provides in pertinent:

Any person or party participating in good faith in the making of a report ... pursuant to §§ 26-8A-3 to 26-8A-8, inclusive, or pursuant to any other provisions of this chapter, is immune from any liability, civil or criminal, that might otherwise be incurred or imposed, and has the same immunity for participation in any judicial proceeding resulting from the report. Immunity also extends in the same manner ... to child protection teams established by the secretary of social services, to public officials or employees involved in the investigation and treatment of child abuse or neglect,

(emphasis added). We have defined “good faith” as used in this statute as “performing honestly, with proper motive, even if negligently.” Cotton v. Stange, 1998 SD 81, ¶ 8, 582 N.W.2d 25, 28 (citing B.W. v. Meade County, 534 N.W.2d 595, 596 (S.D. 1995). Further, the “standard for determining good faith is a defendant’s honest belief in the suitability of the actions taken.” Id.

[¶ 25.] Purdy argues there are genuine factual issues in dispute as to whether Cummings and Fleming acted in good faith. Specifically, she charges that even if Cummings and Fleming had the mistaken belief that they could not act to protect Amanda because they lacked jurisdiction, they later learned that North Dakota was not going to conduct an investigation either, and they still did not conduct any further investigation. Based on the following analysis, we hold that although these alleged actions may be arguably negligent, their conduct cannot be said to be taken in bad faith.

[¶ 26.] We have held that there must be some evidence that defendants acted with an improper purpose in their failure to take further investigatory steps. B.W., 534 N.W.2d at 597-98; Cotton, 1998 SD 81, ¶¶8-12, 582 N.W.2d at 28-29. We have also held that erroneous interpretation of jurisdictional laws has also been held to be protected by SDCL 26-8A-14. Brown Eyes v. Department of Social Services, 2001 SD 81, ¶ 15, 630 N.W.2d 501, 507.

[B]ad faith ... is obviously something far more extreme than a failure to observe reasonable ... standards or the standards of a reasonably prudent [person], It is irrelevant that the person in question was negligent informing a particular belief. All that is required ... is the actual belief or satisfaction of the criterion of the “pure heart and empty head.”

Cotton, 1998 SD 81, ¶ 11, 582 N.W.2d at 29 (citing Garvis v. Scholten, 492 N.W.2d 402, 404 (Iowa, 1992)). While the actions of Cummings and Fleming are very arguably negligent, they fall well short of the bad faith standard. As such, after a review of the record in the light most favorable to Purdy, there is no evidence that Cummings and Fleming acted for an improper purpose and thus, summary judgment based on SDCL 26-8A-14 is proper.

[¶ 27.] Purdy contends that to the extent SDCL 26-8A-14 seeks to immunize the ministerial acts of public employees, it is unconstitutional. For support, Purdy cites to South Dakota Const. Article VI, Section 12 (prohibiting the passage of immunity laws); Article VI, Section 18 (privileges and immunities clause); Article III, Section 23(9) (prohibiting the legislature from passing special laws granting immunity to individuals, associations, or corporations). Moreover, Purdy contends that this attempt to grant immunity to actions of Department of Social Services employees violates Article VI, Section 20, the “open courts” provision, of the South Dakota Constitution.

[¶ 28.] In analyzing the constitutionality of a statute that limits liability, we have consistently held:

Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.

Vilhauer v. Horsemen’s Sports, Inc., 1999 SD 93, ¶ 11, 598 N.W.2d 525, 527 (additional citations omitted). Additionally, when the issue of good faith immunity under SDCL 26-8A-14 has been before this Court, we have upheld this statute. See, e.g., Brown Eyes, 2001 SD 81, ¶ 16, 630 N.W.2d at 508 (holding summary judgment was proper because of good faith immunity under SDCL 26-8A-14); Cotton, 1998 SD 81, ¶ 13, 582 N.W.2d at 29 (finding Department of Social Services employee’s conduct fell under immunity provided by SDCL 26-8A-14); B.W., 534 N.W.2d at 597 (stating that public officials and employees involved in the investigation and treatment of child abuse and neglect are covered by our immunity statute). In line with our previous holdings, we find SDCL 26-8A-14 constitutional, and therefore, Cummings and Fleming’s actions are shielded under this statute’s immunity.

[¶ 29.] Because we find that both Cummings and Fleming are immune from suit under SDCL 26-8A-14, there is no need to address the issue of sovereign immunity as it relates to Cummings.

[¶ 30.] 3. Whether Purdy’s federal claim under 42 USC § 1983 is barred by qualified immunity.

[¶ 31.] Pursuant to 42 USC § 1983, Purdy claims that Amanda’s Fourteenth Amendment substantive due process right to be free from bodily harm caused by third parties has been violated. For support, she cites to DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). While Purdy acknowledges that the general rule of De-Shaney is that state actors generally have no due process obligation to protect private parties from other private parties, she argues that DeShaney’s holding was limited to violations of a discretionary duty. In contrast, Purdy alleges that ministerial duties in the instant ease were violated.

[¶ 32.] We find this argument unpersuasive. Even assuming the jurisdictional obligation to investigate fell upon Cummings and Fleming, rather than North Dakota Social Services, the numerous ins and outs of such an investigation are clearly a discretionary duty as to how the investigation is done. Who to talk to, what type of information to seek, the possible use of various types of experts, determinations of witness credibility and recommendations to appropriate prosecuting and other legal authorities all call for discretion by the investigator. It is very similar to the discretion exercised by law enforcement conducting criminal investigations. It is a far cry from a Social Worker deciding whether or not to stop for an oncoming car (Kyllo v. Panzer, 535 N.W.2d 896 (S.D.1995)) or placing a child in foster care under predetermined criteria and standards (Brown Eyes, 2001 SD 81, ¶ 12, 630 N.W.2d at 506).

[¶ 33.] Purdy alleges that Fleming and Cummings violated Amanda’s substantive due process right to bodily integrity by failing to investigate her claims of sexual abuse against Froistad. However, under DeShaney, no due process violation occurs when state actors simply fail to protect individuals from harm by private actors. 489 U.S. at 195, 109 S.Ct. at 1003, 103 L.Ed.2d at 258-59. The facts of the instant case are not materially distinguishable from the facts of DeShaney. In De-Shaney, after multiple allegations of abuse by his father to social workers, Joshua DeShaney was returned to his father’s home and subsequently, suffered severe brain damage. DeShaney, 489 U.S. at 193, 109 S.Ct. at 1001-02, 103 L.Ed.2d at 257. The United States Supreme Court held that the allegations against social workers that they failed to protect the child from his father does not constitute a violation of a recognized constitutional right. Id. at 201, 109 S.Ct. at 1007,103 L.Ed.2d at 262-63. Therefore, Purdy’s allegations must also fail under this holding.

[¶ 34.] Although DeShaney contains two exceptions to this general rule, we find that neither exception applies to the case at hand. First of all, Cummings and Fleming did not have a special or. fiduciary relationship with Amanda because she was not in the state’s custody. Id. at 198-199, 109 S.Ct. at 1004-05, 103 L.Ed.2d at 260-61. Depending on the time of the year, Amanda was in her father’s custody or her mother’s custody. Second, Amanda was not injured by a state created danger. Id. at 201, 109 S.Ct. at 1006, 103 L.Ed.2d at 262-63. Here, Cummings and Fleming did not create the danger that ultimately caused Amanda’s death. Just as returning Joshua DeShaney to his father did not constitute a state created danger; failing to remove Amanda from Froistad’s home in North Dakota did not either. We hold that there is no genuine issue of material fact as to Purdy’s federal claim and thus, summary judgment was proper.

Claims against Dr. Buzzetta

[¶ 35.] 4. Whether the causes of action against Dr. Buzzetta were barred by the applicable statute of limitations.

[¶ 36.] Purdy alleged several claims against Dr. Buzzetta, including a claim for wrongful death. SDCL 21-5-3 sets forth the statute of limitations for wrongful death in South Dakota. This statute states that “[e]very action for wrongful death shall be commenced within three years after ... death.” Even though Purdy admits this cause of action was not commenced until nearly four years after Amanda’s death, she claims that fraudulent concealment prevented her from discovering the existence of her cause of action. Purdy argues that she had a confidential relationship with Dr. Buzzetta and accordingly, claims that where “a trust or confidential relationship does exist between the parties, silence on the part of one having the duty to disclose, constitutes fraudulent concealment ...” See Hinkle v. Hargens, 76 S.D. 520, 525, 81 N.W.2d 888, 891 (1957) (recognizing a trust relationship in a doctor/patient relationship).

[¶ 37.] Although in normal circumstances, a confidential relationship does exist between a psychologist and his patient, this is not the case here. Purdy did not approach Dr. Buzzetta voluntarily seeking treatment. Dr. Buzzetta’s examination was part and parcel of a court proceeding Purdy initiated. By Purdy’s own testimony, she knew that the information obtained during her interview with Dr. Buzzetta would not be kept confidential and would be provided to Froistad and the court pursuant to its order. The order was the sole basis for their relationship and it clearly did not contemplate setting up a confidential relationship between Pur-dy and Buzzetta. In light of the limited purpose of this examination by Buzzetta, Purdy’s visit with him and the public nature of the attendant court proceedings, this should not be considered a relationship of voluntary patient/psychologist with the corresponding expectation of trust and confidence. See SDCL 19-13-6(4) (providing that a communication is confidential if not intended to be disclosed to a third person).. Therefore, Purdy’s argument fails.

[¶ 38.] Purdy claims that Dr. Buzzetta purposely omitted certain facts about Froistad in his report, such as a past suicide attempt and a possible history of childhood sexual abuse. Even if Purdy’s claims are true, she received a copy of Dr. Buzzetta’s report in December of 1994 or soon thereafter. She testified that at this time, she disagreed with the report and felt Dr. Buzzetta had “twisted” the information given to him in Froistad’s favor in order to paint her in an unfavorable light. For example, Purdy testified that although she had told Dr. Buzzetta about Froistad having been sexually abused as a child, the report makes no mention of such. However, Purdy took no action to determine if any other omissions existed, and she never contacted Dr. Buzzetta to discuss the report. Furthermore, she did not object to its use in the North Dakota court proceedings. Purdy’s decision not to inquire as to whether any other information, which she deemed relevant, was omitted from Dr. Buzzetta’s report precludes her claim as a matter of law. See Strassburg, 1998 SD 72, ¶ 7, 581 N.W.2d at 513 (holding that when one receives documents that puts this person on notice of fraud, the fraud is discoverable as a matter of law for limitations period purposes). Purdy can also provide no evidence that Buzzetta took any affirmative steps to prevent her from discovering her cause of action. See Bruske, 1997 SD 108, ¶ 20, 567 N.W.2d at 880 (stating that to establish fraudulent concealment, the actions, or inactions, of the defendant must be directed to the point of obtaining delay). Consequently, there are no genuine issues that exist with regard to fraudulent concealment. We, therefore, find that Purdy’s claims against Dr. Buzzetta were properly dismissed.

CONCLUSION

[¶ 39.] It takes a strong judicial stomach to set aside one’s emotions concerning the unspeakable acts inflicted upon Amanda and impartially review them as against the applicable law. The ultimate villain is in a North Dakota prison where he clearly belongs for a long time. Viewing the conduct of the defendants, especially with the benefit of hindsight, it hardly constitutes a textbook perfect case about how to investigate, and deal with, allegations of sexual abuse upon children. The fate of Amanda will hopefully serve as a wake-up call that increased vigilance is needed to avoid a tragic repetition of this type of case. Nevertheless the facts do not create the basis for a trial for damages against the defendants for the reasons set forth above.

[¶ 40.] Affirmed.

[¶ 41.] ZINTER, Justice, and AMUNDSON and MILLER, Retired Justices, concur.

[¶ 42.] MARTIN, Retired Circuit Court Judge, sitting by Order of the Court, concurs in part and dissents in part.

[¶ 43.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

[¶ 44.] MARTIN, Retired Circuit Court Judge, sitting for KONENKAMP, Justice, disqualified.

[¶ 45.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

MARTIN, Retired Circuit Judge

(concurring in part and dissenting in part)

[¶ 46.] I concur with the majority opinion regarding the claims against Fleming and Cummings.

[¶ 47.] I dissent regarding the claims against Dr. Buzzetta.

Claims against Dr. Buzzetta

[¶ 48.] Dr. Buzzetta was a licensed psychologist. He was hired by Larry Frois-tad in the North Dakota custody dispute to conduct an 'evaluation to respond to the allegations of Purdy and the information she offered from child therapist Liz Thorn, the counselor that was providing services to Amanda. The circuit judge in North Dakota ordered Dr. Buzzetta to also evaluate Purdy and the child Amanda. Dr. Buzzetta requested Richard Leir, counsel- or, to make some initial evaluations of the parents and the child. Leir did not interview the child. Leir sent his report to Dr. Buzzetta with certain reservations and did not intend his conclusions to be the final recommendation to the court. Dr. Buzzet-ta submitted his report to the North Dakota circuit judge, with the following perceived deficiencies:

1. There was a note in Dr. Buzzetta’s file indicating that Dr. Buzzetta deleted certain “Larry Facts” from the Leir report. Those facts include Larry’s suicide attempts and his sexual history (possible childhood sexual abuse) detailed in the Leir report.
2. Despite his failure to include Larry’s suicide attempts, Dr. Buzzetta reported Purdy’s suicide attempts. This shows his lack of impartiality.
8. Dr. Buzzetta retained that portion of the Leir report concerning sexually transmitted diseases, and recommended to the North Dakota court that all children (four) be tested for sexually transmitted disease. Despite concluding that Larry Froistad was not abusing the children.
4. Dr. Buzzetta knew that the Leir report was not comprehensive in nature.
5. Dr. Buzzetta’s report states that he interviewed the child. However, Dr. Buzzetta’s report contains nothing about Amanda. The report contains a summary of the findings regarding the parents and the following statement, “obviously this evaluation is based on self-report from Larry and Ann in addition to some very limited information from Ms. Liz Thorn, Ann’s Counselor.... ” The report seems to conflict as to whether he did or did not interview the child.
6. Dr. Buzzetta was ordered by the court to evaluate Amanda. If he did interview the child, where is the evaluation?
7. Dr. Buzzetta’s report (page one) specifically states: “The information provided to me by Mr. Leir is included in this report.” .Obviously, this is untrue by virtue of Dr. Buzzetta’s deletion of certain “Larry Facts.”

[¶ 49.] Purdy alleges a claim for the wrongful death of her daughter, Amanda. SDCL 21-5-3 provides a three-year statute of limitation after the wrongful death. Fraudulent concealment tolls a statute of limitation until the cause of action is discovered, or might have been discovered by exercise of diligence.

In the absence of some trust or confidential relationship between the parties there must be some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action.... When, however, a trust or other confidential relationship does exist between the parties, silence on the part of one having the duty to disclose constitutes fraudulent concealment in the absence of any affirmative act.

Hinkle v. Hargens, 76 S.D. 520, 525, 81 N.W.2d 888, 891 (1957); Glad v. Gunderson, 378 N.W.2d 680, 682 (S.D.1985).

[¶ 50.] The majority opinion states that Purdy did not have the prerequisite “trust or confidential relationship” between herself and Dr. Buzzetta. Thus, Dr. Buzzetta did not have a duty to disclose and therefore his silence could not constitute fraudulent concealment. I disagree.

[¶51.] This Court has previously held that whether fraudulent concealment has occurred is a question of fact. McGill v. American Life and Casualty Ins. Co., 2000 SD 153, 619 N.W.2d 874. There is a jury question as to the existence of fraudulent concealment by virtue of the following:

1. There existed a “trust or confidential” relationship between Purdy and Dr. Buzzetta, imposing a duty to disclose on Dr. Buzzetta.
2. Dr. Buzzetta had an obligation of honesty, impartiality, fairness, and candor to the parties and the court, imposing a duty to disclose on Dr. Buzzetta.

Even if the above “relationships” are unpersuasive, then there is still a jury question as to the existence of fraudulent concealment, by virtue of Dr. Buzzetta’s professional code of conduct, and his affirmative acts.

3. Dr. Buzzetta was bound by his professional ethical code of conduct providing for a duty of substantial professional contact, a duty to disclose all pertinent information, and an obligation not to use fraud, misrepresentation, or deception in reporting the results of psychological evaluations or services. See AASPB Code of Conduct, May 1991, American Association of State Psychology Boards; SDAR 20:60:07:01 (Psychologists Code of Ethics).
4. Dr. Buzzetta’s intentional deletion of certain “Larry Facts” was an affirmative act for jury determination as to fraudulent concealment.

Trust or Confidential Relationship between Dr. Buzzetta and Purdy

[¶ 52.] The circuit court in North Dakota ordered Dr. Buzzetta to also evaluate Purdy and the child, Amanda. In Hinkle, supra, our Court held that where there is a “trust or confidential relationship” then silence on the part of one having the duty to disclose, constitutes fraudulent concealment. The majority opinion states that the relationship between Purdy and Dr. Buzzetta was not confidential in nature because it was a court-ordered relationship and not voluntary on Purdy’s part. Further, the majority opinion states that Pur-dy knew that the information obtained during the interview with Dr. Buzzetta would not be kept confidential.

[¶ 53.] A confidential relationship is not restricted to any particular association of persons. It exists whenever there is trust and confidence, regardless of its origin. Such a confidential relationship exists between two persons when one has gained the confidence of the other and purports to act or advise with the other’s interest in mind. Kase v. French, 325 N.W.2d 678, 680 (S.D.1982). The mere fact that the information obtained was court-ordered and would be used in a court proceeding does not destroy this confidential relationship. If the majority opinion is correct, then whenever a court-appointed (ordered) expert is named in a custody hearing, the relationship between the expert and his patient will not be confidential. This would allow the expert to commit fraud, misrepresentation, and/or deception with no duty to disclose all pertinent and relevant information to the court.

[¶ 54.] If the relationship between Dr. Buzzetta and Purdy is not one of “confidentiality” then it is certainly one of “trust.” Notice the phrase “trust or confidential relationship” is in the disjunctive. In Webster’s New World Dictionary, Third College Edition, the word “trust” is defined as, “firm belief or confidence in the honesty, integrity, reliability, justice, etc. of another person; faith; reliance.” If Dr. Buzzetta performs a psychological evaluation of Purdy there exists some sort of relationship. I believe it includes a relationship of “trust,” which denotes fairness, impartiality, honesty, candor, and justice. It does not mean Dr. Buzzetta can be selective in the information contained in his report, to the detriment of Purdy. Dr. Buzzetta had a duty to disclose. His silence could constitute fraudulent concealment and the merits of the claim should be determined by a jury.

Dr. Buzzetta’s Obligation to the Parties and the Court

[¶ 55.] Because he was ordered by the circuit court in North Dakota to perform a psychological evaluation on the whole family, Dr. Buzzetta could be considered a court appointed expert. As such, Dr. Buz-zetta had an obligation of trust, impartiality, candor, and fairness to the parties and the court. By virtue thereof, Dr. Buzzetta had the duty to disclose. His failure to do so could constitute fraudulent concealment and the merits of the claim should be determined by a jury.

[¶56.] Pursuant to ND St Rev Rule 706, the court may select its own expert, with the consent of the expert witness. The rule further provides, “A witness so appointed shall advise the parties of the witness’ findings, if any....” ND St Rev Rule 706. Pursuant thereto, Dr. Buzzetta had a duty to disclose all the relevant and pertinent information concerning his evaluations, including the findings of Leir. This obligation extends to both the parties and the court. How else can the parties receive a fair and impartial evaluation? How else is the judge to make an informed and fair determination of custody?

[¶ 57.] Pursuant to ND St Rev Rule 705 the expert may testify in terms of opinion and give reasons therefore without first testifying to the underlying facts, unless the court requires otherwise. ND St Rev Rule 705. Further, the expert may be required to disclose the underlying facts or data on cross-examination. Id. At first glance one might think that the court or Purdy had the opportunity to ask for the underlying facts and it was not done. However, we must remember that Dr. Buzzetta intentionally deleted the aforementioned pertinent facts from his report; therefore, these were not underlying facts or data of his report subject to disclosure on cross-examination. In addition, given his lack of disclosure it is unclear if Dr. Buzzetta would have revealed this information during his cross-examination. In any event, this would be for a jury to decide.

[¶ 58.] The aforementioned North Dakota statutes require disclosure of all the expert’s findings. The court is also entitled to a full disclosure. 31A AmJur2d, Expert and Opinion Evidence, § 10 (2002) provides: “An expert witness appointed by the trial court to obtain disinterested and unbiased testimony, ... is an officer of the court and does not appear as the witness of either party.” Recently, this Court dealt with an attorney (officer of the court) and his obligation for full disclosure. In Re Discipline of Wilka, 2001 SD 148, 638 N.W.2d 245. The Court recognized:

Clearly the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth. It requires every attorney to be fully honest and forthright. We cannot over emphasize the importance of attorneys in the State being absolutely fair with the Court. Every court has the right to rely upon an attorney to assist it in ascertaining the truth of the case before it.

Id. ¶ 15. Does the obligation and duty of Dr. Buzzetta, under these circumstances, allow him to be selective in what he informs the court, to conceal relevant and pertinent information, to be partial, to fail to follow the court’s order, to mislead the court, and to violate his own professional code of conduct? Certainly not. Dr. Buz-zetta’s duty and obligation was to be fair and impartial with all those evaluated and to disclose all information relevant and pertinent to a custody hearing so the parties could receive fair and impartial consideration and also assist the court in ascertaining the truth. This requirement allows the judge to make an intelligent, informed, and fair determination of custody.

[¶ 59.] Dr. Buzzetta’s obligation to the parties and to the court is an independent foundation for fraudulent concealment irrespective of any question of a “trust or confidential” relationship.

[¶ 60.] Dr. Buzzetta was hired as an expert by Larry Froistad, and ordered by the court to conduct an evaluation as an expert. This is unusual but there are no facts in the record to show its proper perspective. Even if Dr. Buzzetta was some sort of hybrid expert witness, can you question an obligation of full disclosure? Witnesses are sworn to tell the whole truth not suppress the truth. Whether this conduct constituted fraudulent concealment is for a jury to decide. Ethical Code of Conduct for Dr. Buzzetta

[¶ 61.] If we assume that we are absent a “trust or confidential” relationship, Dr. Buzzetta had a duty to disclose, pursuant to his ethical code of conduct. SDAR 20:60:07:01 provides that the code of ethics for licensed psychologists is the AASPB Code of Conduct, May 1991. Pertinent provisions follow:

III. A. 5 (page 8-9). Sufficient professional information, provides: A psychologist rendering a formal professional opinion about a person, for example about the fitness of a parent in a custody hearing, shall not do so without direct and substantial professional contact with or a formal assessment of that person.
III. H. 3 (page 17). Reservations concerning results, provides: The psychologist shall include in his/her report of the results of an assessment procedure any deficiencies of the assessment norms for the individual assessed and any relevant reservations or qualifications which affect the validity, reliability, or other interpretation of results. III. I. 2 (page 18). Use of fraud, misrepresentation, or deception, provides in part: The psychologist shall not use fraud, misrepresentation, or deception ... in providing psychological service, in reporting the results of psychological evaluations or services, or in conducting any other activity related to the practice of psychology.

[¶ 62.] In City of Aberdeen v. Rich, 2001 SD 55, 625 N.W.2d 582, this Court held that fraud and deceit include not only affirmative acts, but also acts of omission. The necessary relationship is satisfied since the professional code of conduct extends to all those Dr. Buzzetta evaluated or treated. Dr. Buzzetta had a duty to disclose.

[¶ 63.] I believe it is a jury question whether Dr. Buzzetta violated the above code of conduct by possibly not interviewing the child; by not providing a report on the child; by not conducting a more comprehensive evaluation of the parents; by providing detrimental information about the mother and not providing similar information about the father; by omitting relevant and pertinent information about the father; and, by stating that his report contained the information provided by Leir.

[¶ 64.] The professional code of conduct is an independent foundation for fraudulent concealment irrespective of any question of a “trust or confidential” relationship.

Dr. Buzzetta Committed an Affirmative Act

[¶ 65.] If we assume that we are absent a “trust or confidential” relationship, “fraudulent concealment” must consist of some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action. Strassburg v. Citizens State Bank, 1998 SD 72, 581 N.W.2d 510. Dr. Buzzetta’s failure to disclose pertinent information is identified by his writing, “deleted certain Larry Facts.” This was an affirmative act and continued to be so. It was also an affirmative step to prevent Purdy from discovering her cause of action. If this constitutes fraudulent concealment is a question for the jury to decide.

[¶ 66.] The majority opinion further states that even if Purdy’s contentions are correct she had the necessary documents that put her on notice of the fraud. Therefore, the fraud was discoverable as a matter of law. This purported notice of the discoverable fraud consisted of Purdy having access to Dr. Buzzetta’s report, her taking no action to determine if any other omissions existed, and never contacting Dr. Buzzetta to discuss the report.

[¶ 67.] Having a copy of Dr. Buzzetta’s report would not show the intentional deletions by Dr. Buzzetta. Requiring Purdy to go to Dr. Buzzetta to discuss the report and presumably ask him if there were any omissions is equally disconcerting. How reasonable is it to expect a lay person to walk into a doctor’s office and challenge him regarding his report? Further, if Dr. Buzzetta felt no compunction about deleting certain “Larry Facts” and concealing them from the judge, what makes a reasonable person think Dr. Buzzetta would reveal the fraudulent concealment to Pur-dy? Her lawsuit was commenced on March 20, 1999. The note in Dr. Buzzet-ta’s file was not discovered until September 1999, pursuant to a motion to order the disclosure. To hold that Purdy knew of the existence of omissions because she had Dr. Buzzettas report, or that she should have discovered the note earlier, as a matter of law, is untenable. It should be a jury question.

CONCLUSION

[¶ 68.] It is unfortunate that Dr. Buz-zetta is now deceased. He may very well have answers to the aforementioned perceived deficiencies on his part. However, we take the record as it is. In a summary judgment motion, all reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Viewing the facts in Purdy’s favor creates a jury question of fraudulent concealment that would toll the pertinent statute of limitations and allow Purdy to pursue her cause of action for wrongful death.

[¶ 69.] Therefore, I respectfully dissent as to Issue Four.

      . As part of its investigation, North Dakota law enforcement authorities discovered pornographic videos on the hard drive of Frois-tad's computer allegedly depicting sexual encounters between Froistad and his daughter, Amanda.

      . Froistad was sentenced to 40 years, with ten years suspended, in prison at the North Dakota Department of Corrections.

      . Although not raised by Purdy on appeal, it appears the statute of limitations for the survival action is not tolled by Amanda’s minority because of her death. See Holt v. Lenko, 791 A.2d 1212, ¶ 10 (Pa.Super.2002) (concluding that the minority tolling provisions do not contemplate a minor who has died).

      . Further, in Fleming's typed interview of Amanda for the State of North Dakota, she wrote that "Amanda then went on to state that she was afraid of her dad ... Amanda went on to state that her dad touches her in the privates when she is sleeping with him ... Amanda pointed to her vaginal area.”

      . Because we hold that a fiduciary relationship was not present, cases such as the City of Aberdeen v. Rich are distinguishable from the present case. 2001 SD 55, 625 N.W.2d 582. In Rich, we found that a fiduciary relationship existed and in such, mere silence or lack of disclosure constituted fraud. 2001 SD 55, ¶21, 625 N.W.2d at 587. Moreover, that affirmative steps are needed to constitute fraudulent concealment applies equally to the claims against Dr. Buzzetta, discussed below.

      . That written report to the North Dakota judge by Liz Thorn contained a graphic description of Thorn’s interviews with Amanda:
      In meeting with Amanda in this first session she stated to me that her daddy touched her on her private parts with his hands. I reported this to Social Services and an investigation was to have been done in North Dakota. Continuing counseling sessions were on a weekly basis. Throughout these sessions Amanda would state to me that she missed her daddy but wants to just visit him, wanted to live with her mother. This was a repeated theme. When I would ask her why she would state to me “Because he touches me on my private parts.” Again, on 7-26-94, our third session 'together, Amanda spoke with me about the fact that her daddy touched her on her private parts and she wished with my wishing wand that I could teach daddy not to touch her on her private places.


author: GILBERTSON, Chief Justice. SABERS, Justice

text:
    2002 SD 159
    Leonard McELHANEY, Appellant, v. CITY OF EDGEMONT, Appellee.
    No. 22292.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 7, 2002.
    Decided Dec. 18, 2002.

      Patrick M. Ginsbach of Farrell, Farrell and Ginsbach Hot Springs, South Dakota, Attorneys for appellant.
    Donald P. Knudsen of Gunderson, Palmer, Goodsell & Nelson Rapid City, South Dakota, Attorneys for appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] In McElhaney v. Anderson (McElhaney I), we reversed and remanded the circuit court’s decision which restored Leonard McElhaney (McElhaney), former Street and Water/Utilities Superintendent for the City of Edgemont (City), to his appointed position. 1999 SD 78, ¶ 16, 598 N.W.2d 203, 207. In our holding, we found that McElhaney had adequate alternative remedies through the South Dakota Department of Labor (DOL). Id. However, in the DOL proceedings, McEl-haney’s claims were ultimately dismissed, which the Seventh Judicial Circuit later affirmed. As a result, McElhaney brings this appeal. He claims that summary judgment was not proper because the City violated its procedure manual when the Mayor did not reappoint him to his position. We affirm the circuit court’s order.

FACTS AND PROCEDURE

[¶ 2.] McElhaney served as the City’s Street and Water Commissioner/ Utility Superintendent beginning in 1977. However, on May 4, 1998, the then Mayor, Gary Martin (Martin) appointed and the Edgemont City Council (Council) approved, Russell Anderson (Anderson) as the new Street and Water Commissioner. McElhaney filed an application and affidavit for writ of prohibition in the circuit court several days later. He asserted that the Council had no authority to appoint a Street and Water Commissioner because it had not included that appointment as an agenda item prior to the meeting. The circuit court granted McElhaney’s writ and scheduled a hearing for May 29, 1998.

[¶ 3.] After the hearing, the court found that by adding the appointment of a Street and Water Commissioner to the agenda during the Council meeting, the City had violated South Dakota’s open meetings law. Therefore, the City’s appointment of Anderson to that position was void. The writ of prohibition was discharged, and the City was instructed to “follow the applicable statutes.” Furthermore, the court in its Memorandum Opinion stated, “If the City complies with the open meeting requirement, there is no legal reason why they could not appoint Russell Anderson ... The applicant has no entitlement to a continued appointment. ...”

[¶ 4.] On June 15, 1998, the City once again met and appointed Anderson as Street and Water Commissioner. However, because the City realized that one of its council members had not received personal service of notice of the council meeting, the City cured this defect by meeting on June 22, 1998, and once again appointing Anderson to that position. McElhaney followed the proper procedures for filing grievances and finding no relief, appealed to the Council, which also rejected his grievances.

[¶5.] McElhaney appealed the Council’s decision to the South Dakota DOL. The DOL stayed its proceedings awaiting the outcome of McElhaney’s litigation in circuit court where he sought a writ of quo warranto against Anderson and the City, claiming that Anderson unlawfully held the office for the City. The circuit court issued the writ and later, found in favor of McEl-haney, finding that he was legally entitled to the position. The City appealed.

[¶ 6.] We reversed the circuit court’s decision in McElhaney I, 1999 SD 78, ¶ 4, 598 N.W.2d 203, 205. This Court held, “[A]s this writ is extraordinary and adequate alternative remedies are available in this case, McElhaney should pursue his grievance through the Department of Labor and not with a writ of quo warranto.” 1999 SD 78, ¶ 16, 598 N.W.2d at 207. We, therefore, commanded the circuit court to quash the writ. Id.

[¶ 7.] After we reversed the circuit court’s opinion, the South Dakota DOL once again took up McElhaney’s appeal from the City Council’s denial of his grievance. Both McElhaney and the City declared there were no issues of material fact and filed motions for summary judgment. McElhaney’s motion for summary judgment alleged the City had failed to follow the time limits in handling McElhaney’s grievance as imposed by the City’s Personnel Manual, constituting a settlement of his grievance in his favor. The City in its motion argued that McElhaney had no right to pursue a grievance before the DOL because the City’s Personnel Manual did not apply to him since a failure of reappointment did not constitute a demotion.

[¶ 8.] The DOL granted the city’s motion and found that the City was free to appoint anyone to the Street and Water Commissioner position, because McElha-ney had no continuing right to that office following the expiration of the term of his appointment. Additionally, the DOL found that McElhaney lacked a grievable claim under the terms of the City’s Procedure Manual as the City’s failure to reappoint McElhaney did not constitute a demotion. The Seventh Judicial Circuit later affirmed the DOL’s decision.

[¶ 9.] McElhaney seeks review of the circuit court’s order. He raises the following issue for appeal:

Whether the DOL properly dismissed McElhaney’s cause of action against the City.

STANDARD OF REVIEW

[¶ 10.] On appeal from an administrative agency, this Court reviews the decision according to the standard set forth in SDCL 1-26-36, which provides:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced

“When the issue is a question of fact, we ascertain whether the administrative agency was clearly erroneous.” Butte County v. Vallery, 1999 SD 142, ¶ 8, 602 N.W.2d 284, 286-87 (quoting Moose Lodge v. Pennington County, 1997 SD 80, ¶ 5, 566 N.W.2d 132, 133 (additional citations omitted)). When, however, the issue is a question of law, we review the decisions of both the administrative agency and the circuit court de novo. Vallery, 1999 SD 142, ¶ 8, 602 N.W.2d at 286-87.

ANALYSIS AND DECISION

[¶ 11.] Whether the DOL properly dismissed McElhaney’s cause of action against the City.

[¶ 12.] The DOL found that McElha-ney’s position with the City was an appointed position, one that did not give McElhaney a property right in his employment. Additionally, the DOL determined that because the City’s Procedural Manual did not constitute an employment contract, this likewise supported the finding that he lacked any type of property interest. Finally, the DOL found that the City’s failure to reinstate McElhaney was not a demotion and did not fall under the City’s procedural guidelines regarding demotions. The circuit court found these findings proper under the law. We agree.

[¶ 13.] Under SDCL 9-14-13, the mayor has the authority to remove an appointed official as he deems necessary to promote the interests of the municipality. In Patterson v. Linn, we held that [plaintiffs] appointed position was terminable when the mayor decided it was in the city’s best interest[,]” and to hold otherwise is contrary to the provisions of SDCL 9-14-13. 2001 SD 135, ¶ 11, 636 N.W.2d 467, 470.

[¶ 14.] McElhaney contends that Patterson is distinguishable from his case because he held two positions: one was an appointed position (Street and Water Commissioner); the other was not an appointed position (Utilities Superintendent). Further, McElhaney alleges that although the position of Street and Water Commissioner was created by ordinance, the position of Utilities Superintendent was created by contract. We find that this argument is inconsistent with the factual record. First of all, McElhaney concedes in his brief that the Superintendent position was eliminated by the City Council in February 1998. Furthermore, in numerous places in his pleadings, he confirms his belief that the Street and Water Commissioner position was one and the same as the Utilities Superintendent position. It is well-settled law that in later proceedings, a party cannot claim a better version of the facts than he previously claimed. Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 16, 557 N.W.2d 764, 768; see also World Turner v. Weber, 2001 SD 125, ¶ 14, 635 N.W.2d 587, 592; Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 36, 606 N.W.2d 919, 926. Therefore, McElhaney’s argument must fail.

[¶ 15.] Next, McElhaney asserts that the City is taking an inconsistent position as against the one argued in McElha-ney I. Specifically, McElhaney argues that since we agreed with the City’s argument that McElhaney should not be allowed to pursue his writ of quo warranto as he had not exhausted his administrative remedies, the City cannot now say the City’s Procedural Manual does not apply to him. See McElhaney I, 1999 SD 78, ¶ 10, 598 N.W.2d at 206. We find this argument unpersuasive.

[¶ 16.] McElhaney erroneously interprets the meaning of the term “remedy.” According to Booth v. Chumer, the United States Supreme Court defined “remedy” as:

[Depending on where one looks, “remedy” can mean either specific relief obtainable at the end of a process of seeking redress, or the process itself, the procedural avenue leading to some relief.

532 U.S. 731, 738, 121 S.Ct. 1819, 1823-1824, 149 L.Ed.2d 958 (2001) (citing Black’s Law Dictionary 1296 (7th ed.1999)). In discussing the scope of Art VI § 20 of the South Dakota Constitution (open courts provision), we examined the nature of a remedy as compared to a recovery. We held that our constitutional based legal system:

could not provide relief to all claimants simply by virtue of the nature of the legal system which through the frailties of human nature may not always result in the vindication of a claim.... ” [T]his merely guarantees every suitor his day in a court of competent jurisdiction; it does not guarantee a remedy accompanied by certainty of recovery.”

Wegleitner v. Sattler, 1998 SD 88, ¶ 31, 582 N.W.2d 688, 697-698 (internal citations omitted). Thus, the term “remedy” as used in the McElhaney I decision refers to the procedures available to McElhaney to seek relief. Furthermore, McElhaney had a plain, speedy, and adequate remedy in the ordinary course of the law, i.e. the grievance procedure set forth in the City’s Personnel Manual. The fact that McElha-ney may utilize this procedure, however, does not mean he is guaranteed a ruling in his favor on the merit of his claim.

[¶ 17.] McElhaney argues that the City’s position is that McElhaney is not entitled to utilize the City’s grievance procedure. McElhaney misconstrues the City’s position. The City argues that McElhaney has a right to utilize the City’s grievance procedures, which he did. The City’s argument is that the City’s Procedural Manual did not apply to him because failure to reinstate McElhaney was not a demotion. As such, he had no right to the grievance procedures outlined in the manual as it pertains to demotions. Furthermore, the DOL found he had no legally protected right to be appointed to the Street and Water Commission/Utility Superintendent position following the expiration of this appointed term. We agree.

[¶ 18.] Affirmed.

[¶ 19.] KONENKAMP and ZINTER, Justices, concur.

[¶ 20.] AMUNDSON, Retired Justice, concurs.

[¶ 21.] SABERS, Justice, dissents.

[¶ 22.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

SABERS, Justice

(dissenting).

[¶ 23.] I disagree with the majority decision. This Court’s majority should have accepted the circuit court’s findings of fact and conclusions of law in McElhaney I, and its failure to do so has left McElhaney without a viable remedy.

[¶ 24.] In McElhaney I, the majority ordered the writ because McElhaney “failed to exhaust his administrative remedies,” which was the exact argument made by the City on appeal. However, as soon as McElhaney attempted to exhaust his administrative “remedy,” he was thwarted by the City’s argument and the Department’s finding that the City’s Procedural Manual did not apply to him. This finding deprived him of the remedy that the majority required him to exhaust in McElha-ney I.

[¶ 25.] The majority misconstrues the meaning of the word remedy. I agree that McElhaney had no guarantee of relief in pursuing the administrative hearing. However, “remedy” implies that he should have at least had the opportunity to address his grievance before being thrown out of court. As the majority notes at ¶ 16, “the term remedy ... refers to the procedures available to McElhaney to seek relief.” (emphasis supplied). The finding that the Policy Manual did not apply to him removed the only procedure available to him to seek relief after the decision in McElhaney I.

[¶ 26.] McElhaney I stressed the importance of conserving judicial resources. But the ultimate result in this case is that judicial resources have been wasted and the claimant has been denied any remedy for his grievance. He has not had the merits of his claim addressed despite the fact that he has been to both the circuit court and this Court on two occasions. This waste of resources could and should have been avoided by accepting the circuit court’s findings and conclusions in McEl-haney I and allowing him an avenue to redress his grievance.

      . City contends that at this May 4, 1998, meeting, pursuant to a new city ordinance, it had no intention of appointing a Street and Water Commissioner/Utilities Superintendent. The City had decided to change its method of managing the City’s streets, water and waste-water functions. The City further contends that this position was to be eliminated and a different system was in the process of being adopted, which included provisions for the appointment of "working foremen." The City asserts that since the new ordinance was not legally effective on May 4, 1998 (by law, it could not take effect for 20 days following publication in the newspaper), McElhaney was to continue in his current position until it took effect. At that point, McElhaney was to assume the duties of the working foreman of Waste Management with no change in pay. However, the City contends that McElhaney’s attorney, who was present at this May 4 meeting, pressured the Council into appointing a new Street and Water Commissioner, threatening the Council with a lawsuit. The mayor, therefore, appointed and the Council approved Anderson to this position.


author: GILBERTSON, Chief Justice.

text:
    2002 SD 158
    Manuel D. RAMOS, Plaintiff and Appellant, v. FORD MOTOR COMPANY, a corporation, and Tyndall Ford Mercury, Inc., a corporation, Defendants and Appellees.
    No. 22332.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 18, 2002.
    Decided Dec. 18, 2002.

      William A. Moore, Scotland, South Dakota, Attorney for plaintiff and appellant.
    Thomas E. Alberts, Avon, South Dakota, Attorney for defendants and appellees.
   GILBERTSON, Chief Justice.

[¶ 1.] Dr. Manuel Ramos (Ramos) experienced several problems with a new Ford pickup that he purchased from Tyndall Ford. He brought suit against Ford Motor Company (Ford) and Tyndall Ford, seeking damages and revocation of the sales agreement pursuant to SDCL 57A-2-608. After a bench trial on the merits, the trial court entered judgment in favor of the defendants. Ramos appeals and we affirm.

FACTS AND PROCEDURE

[¶ 2.] Ramos is a medical doctor and surgeon who lives in Scotland, South Dakota. In 1999, Ramos purchased a new 1999 Ford pickup from Tyndall Ford. When he bought this vehicle, he received a bumper to bumper 36-month/36,000 mile warranty. The total purchase price of the pickup was $30,741.52 plus $357.33 in licensing and fees.

[¶ 3.] After taking possession of the pickup on January 28, 1999, Ramos immediately noticed an unusual jerking while slowing down to make a turn. Ramos called Joe Plihal (Plihal), the president of Tyndall Ford and informed him of the problem he was experiencing. Plihal drove Ramos’ pickup and told Ramos not to worry because there was nothing wrong with the pickup. Ramos did not complain of the jerk again.

[¶4.] In October 1999, Ramos experienced a leak in the oil hose of the pickup. 'Tyndall Ford told Ramos it was caused by a manufacturer’s defect and repaired the oil hose pursuant to the warranty. Two months later, Ramos again experienced problems with his pickup. The pickup would not travel in reverse without several minutes of shifting back and forth. The pickup was returned to Tyndall Ford where it was serviced for approximately eight to ten days. Tyndall Ford found another manufacturer’s defect, a cracked transmission case, and informed Ramos this defect had been repaired pursuant to the warranty.

[¶ 5.] However, Ramos claims that he continued having problems getting his pickup into reverse. The pickup hesitated for at least a second before moving in reverse. Although Plihal offered to find the problem and correct it, Ramos stated that he “didn’t want the truck worked on anymore.” Furthermore, Ramos informed Plihal the pickup was a lemon and he no longer wanted to operate or own the vehicle. Ramos drove the pickup back to Tyndall Ford and left the key, thereby attempting to revoke acceptance because of his “loss of confidence” in the vehicle. Ramos brought a cause of action against Ford and Tyndall Ford on September 1, 2000.

[¶ 6.] Before trial, in February of 2001, Ford employee Dana Voshell (Voshell) test-drove the pickup several times over a two-day period. In over thirty tests of the reverse gear, Voshell found that not once did he experience a delayed response or “hesitation” with the transmission as alleged by Ramos.

[¶ 7.] The trial court found that based on the evidence in the record, Ramos had failed to prove that he was entitled to revocation of the sales agreement and entered a judgment for defendants on February 4, 2002. Additionally, the trial court found that Ford and Tyndall Ford did not breach any express or implied warranties applicable to the vehicle. Ramos brings this appeal, seeking review of the following issue:

Whether the trial court properly found that Ramos did not revoke his acceptance under SDCL 57A-2-608.

STANDARD OF REVIEW

[¶ 8.] The standard of review for the circuit court’s findings of fact is the clearly erroneous standard. New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425 (citing In re Estate of O’Keefe, 1998 SD 92, ¶ 7, 583 N.W.2d 138, 139)). “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Id. “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994) (citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980)). Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court’s conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

ANALYSIS AND DECISION

[¶ 9.] Whether the trial court properly found that Ramos did not revoke his acceptance under SDCL 57A-2-608.

[¶ 10.] Ramos sought revocation of acceptance of the vehicle pursuant to SDCL 57A-2-608. This statute provides:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
(a) On the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or
(b) Without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

[¶ 11.] Essentially, Ramos argues that the trial court erred in its interpretation of SDCL 57A-2-608. Ramos argues that although the trial court construed this statute as potentially authorizing a buyer to revoke if he loses confidence in the reliability and integrity of a vehicle, the trial court improperly found that the vehicle must contain a defect at the time of the attempted revocation of acceptance. Furthermore, he argues that he was entitled to revoke' his acceptance based on the implied warranty of merchantability as prescribed by SDCL 57A-2-314.

[¶ 12.] It is well-settled law that “[a]s conditions precedent to revocation of acceptance it must first be shown (1) that the goods are nonconforming and (2) that such nonconformity substantially impairs the value of the goods to the buyer.” Cundy v. Int’l Trencher Serv., Inc., 358 N.W.2d 233, 237 (S.D.1984) (finding that although machine had several mechanical defects, buyer of machine was not entitled to revoke acceptance, particularly where machine had been repaired and had since functioned properly). Furthermore, in Schumaker v. Ivers, we held that what constitutes substantial impairment is a factual determination to be made by the trier of fact. 90 S.D. 75, 81, 238 N.W.2d 284, 287 (1976) (additional citations omitted). A substantial impairment means more than a minor defect that is easily repairable. Id.

[¶ 13.] In the trial court’s memorandum opinion, it stated that were the court to find that the vehicle contained a jerk or hesitation when Ramos gave up the vehicle, his alleged loss of confidence would be more likely to be reasonable. However, because the court did not find any defects at the time of the attempted revocation, it found that Ramos’ loss of confidence was not reasonable.

[¶ 14.] We find that there was ample support in the record for the trial court to find that at the time of Ramos’ attempted revocation, the vehicle was not substantially impaired. The trial court was able to observe all the witnesses’ testimony and weigh all the evidence. See Schumaker, 90 S.D. at 82-83, 238 N.W.2d at 288. For example, at trial, Voshell testified that after test driving the vehicle multiple times and testing the reverse gear more than thirty times, he did not experience the “hesitation” complained of by Ramos. In addition, Plihal testified at trial that he test drove the vehicle and did not experience the “hesitation” problem either. Furthermore, Ramos did not present evidence to contradict this testimony and to show that a defect was present in the vehicle at the time he attempted to revoke his acceptance.

[¶ 15.] The trial court was also correct in rejecting Ramos’ proposed conclusion of law that there was an implied warranty of merchantability in the vehicle. For support, Ramos points to SDCL 57A-2-314(3), which provides that “unless excluded or modified ... other implied warranties may arise from course of dealings or usage of trade.” Ramos asserts that he had bought five other pickups from Tyndall Ford and thus, there arose an implied warranty that the 1999 pickup “would be at least as merchantable and perform at least as well as the other five pickups ...” However, SDCL 57A-1-205 defines course of dealing as “a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” Ramos did not present any evidence that Tyndall Ford’s conduct created any sort of implied warranty. Therefore, his proposed conclusion of law was properly rejected.

[¶ 16.] Affirmed.

[¶ 17.] SABERS, KONENKAMP, and ZINTER, Justices, concur.

[¶ 18.] AMUNDSON, Retired Justice, concurs.

[¶ 19.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.