author: MEIERHENRY, Justice.

text:
    2006 SD 109
    Helen GILBERT, Plaintiff and Appellant, v. FLANDREAU SANTEE SIOUX TRIBE, Defendant and Appellee.
    No. 23733.
    Supreme Court of South Dakota.
    Argued on Oct. 4, 2006.
    Decided Nov. 29, 2006.

      Todd D. Epp of Todd D. Epp Law Office, P.L.L.C., Harrisburg, South Dakota, Attorney for plaintiff and appellant.
    Rollyn H. Samp of Samp Law Firm, Sioux Falls, South Dakota, Attorney for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] Gilbert was denied unemployment insurance (UI) benefits after a referee determined she had been terminated for work-related misconduct under SDCL 61-6-14.1. Gilbert claimed the South Dakota Department of Labor Unemployment Insurance Division’s (Department) denial violated her state and federal constitutional rights of free speech. The circuit court affirmed the denial and Gilbert appeals. We affirm.

FACTS

[¶ 2.] Helen Gilbert (Gilbert) was employed by the Flandreau Santee Sioux Tribe (Tribe) as an education coordinator from November 13, 2000 to August 10, 2004. Gilbert supervised a federal wellness program for grades 7-12. Gilbert’s discharge was based on a letter she wrote to the Tribal Executive Committee in reference to the committee’s political appointment of Donalda “Neldie” Montoya (Montoya) to the Office of Tribal Secretary, an office also sought by Gilbert. The letter sharply criticized Montoya’s appointment. Gilbert’s complaint about Montoya stemmed from an earlier incident concerning defamatory statements Montoya allegedly had made about Gilbert.

[¶ 3.] After learning of Montoya’s appointment and before writing the letter, Gilbert telephoned Montoya. In the phone call, Gilbert told Montoya that she was going to “sue her for slander for the statement she made in May, and that she should write this conversation date and time down and let ... her supervisor know.”

[¶ 4.] After the phone call, Gilbert wrote a letter during work hours on tribal stationery to the Tribal Executive Committee. The heading of the letter indicated that it was to the Flandreau Santee Sioux Tribe from Helen Gilbert, education coordinator, in reference to “8/10/04 Inci-denb-Neldie Montoya appointment as FSST Secretary.” The letter began with the following paragraph:

I received a phone call at approximately 2:00 pm on 8/10/04 from an employee who stated that they were just told that Neldie Montoya has just been appointed as Secretary for the tribe. Neldie, during the election petition process had stated to Elizabeth Shortman that the Council was going to block my nomination based on allegations that I was charged as a prostitute. The knowingly false charge such as this sent me over the edge. I have never received any follow up after I complained about Nel-die’s statement.

Additionally, the letter criticized the tribal chairman of neglect of duty as follows:

[He is] unwilling and neglectful in upholding the duties of Tribal Chair by not managing the problems that fall within the purview of his office. Problem employees literally get away with murder, employees who are vocal and know their rights are persecuted.

She then went on to name several other employees who she thought were problem employees and pointedly accused the employees of such things as “violent, hysterical public performances,” “violence in the workplace,” “violation of the political activity policy,” “embezzlement,” drug and alcohol violations, and incompetence.

[¶ 5.] Before sending the letter, Gilbert had her supervisor review it. When asked whether her supervisor okayed the letter, Gilbert stated, “her only reaction or statement was, ‘oh my God, Helen,’ that was it.” As a result of sending the letter to the executive committee, the Tribe decided to suspend Gilbert for violating the political activity policy. Gilbert was admittedly aware of the policy but felt that writing the letter was within the parameters of her employment and refused to accept the suspension order. The Tribe subsequently terminated Gilbert’s employment.

[¶ 6.] As a result, Gilbert filed for UI benefits with the Department on September 2, 2004. The Department initially determined that the conditions of Gilbert’s termination did not disqualify her from receiving UI benefits. The Tribe appealed the Department’s determination.

[¶ 7.] Gilbert claimed that she wrote the letter to the tribal council in her capacity as education coordinator and followed the chain of command before submitting it. After a hearing on the matter, the referee denied Gilbert UI benefits based on a finding that she had been discharged for work-connected misconduct as defined by SDCL 61-6-14.1. The referee specifically found that Gilbert was aware of the Tribe’s political policy, that she wrote a letter to the executive committee on tribal stationary while she was at work, that the letter was critical of the tribal chairman and other tribal employees and that her conduct violated the Tribe’s political activity policy. Gilbert appealed the referee’s decision to circuit court.

[¶ 8.] On appeal, Gilbert did not claim that the referee’s findings were clearly erroneous. Gilbert’s only contention was that she could not be denied UI benefits based upon work-connected misconduct, i.e. violation of the political activity policy, because of her constitutional right to freedom of speech. The circuit court noted that the basic facts were not in dispute, that there was no question that Gilbert’s letter violated the political activity policy and that she violated the policy during working hours utilizing tribal stationery. The circuit court affirmed the referee’s decision and concluded that there was no violation of Gilbert’s constitutional right to freedom of speech. Gilbert appeals the decision claiming that her letter to the tribal council is constitutionally protected free speech for which she cannot be disqualified from receiving UI benefits.

DECISION

[¶ 9.] The Tribe’s reason for dismissing Gilbert was that the letter she wrote to the Tribe allegedly violated its political activity policy. Gilbert does not dispute that she wrote the letter on tribal stationery during work hours using tribal equipment. In fact, she does not appear to dispute the referee’s and trial court’s conclusions that her actions and complaints violated the Tribe’s policy. Consequently, the only issue before us is whether her federal or state constitutional right to freedom of speech protects her from being denied UI benefits.

[¶ 10.] This Court has never analyzed the First Amendment right to free speech in the context of a state’s denial of UI benefits. The United States Supreme Court has, however, recognized that the First Amendment protects religious freedom in the context of UI benefits. In Sherbert v. Vernier, the Court found that a claimant’s refusal to work on her faith’s Sabbath day was protected and could not serve as a basis for denying UI benefits. 374 U.S. 398, 403-04, 83 S.Ct. 1790, 1793-94, 10 L.Ed.2d 965 (1963). Additionally, the Court has long recognized a public employee’s protection of freedom of speech in cases of discharge from employment. As recently stated in Garcetti v. Ceballos, “It is well settled that ‘a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’ ” — U.S. —, —, 126 S.Ct. 1951, 1955, 164 L.Ed.2d 689 (2006) (quoting Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983)). “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Id. Thus in determining whether Gilbert can be denied UI benefits, we follow the method of inquiry set forth by the United States Supreme Court. The Court identifies two inquiries that guide a constitutional analysis as follows:

Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.

Id., (citing Pickering v. Board of Ed. of Tp. High School Dist. Will. Co., Ill., 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick, 461 U.S. at 147,103 S.Ct. at 1690).

[¶ 11.] Accordingly, our first inquiry is whether Gilbert spoke “as a citizen on a matter of public concern.” Id.; see also Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987); State v. Springer-Ertl, 2000 SD 56, ¶¶ 16-17, 610 N.W.2d 768, 773. The employee bears the initial burden of demonstrating that the speech involves matters of public concern. See Connick, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708. The United States Supreme Court defined public concern “as relating to any matter of political, social, or other concern to the community.” Id. at 146, 103 S.Ct. at 1690. In evaluating whether statements are a matter of public concern, we look to their content, form, and context, as revealed by the entire record. Rankin v. McPherson, 483 U.S. 378, 385, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987). An employee acting “as a concerned citizen interested in bringing problems to light more likely raises a matter of public concern than one who attempts to rectify work-place problems.” Wilson v. Washington, 84 Wash.App. 332, 929 P.2d 448, 454 (1996). Statements concerning internal grievances are an example of such attempts to rectify work-place problems and are not generally considered matters of public concern. See Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91. Likewise, an employee that offers his or her personal opinions or beliefs, especially in the work setting, does not implicate matters of public concern. Wilson, 929 P.2d at 454; see also Koch v. City of Hutchinson, 847 F.2d 1436, 1446-47 (10th Cir.1988) cert. denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988); Keating v. University of South Dakota, 386 F.Supp.2d 1096, 1107 (D.S.D. 2005). We cannot “presume that all matters which transpire within a government office are of a public concern ... [because] every remark — and certainly every criticism directed at a public offieial-would plant the seed of a constitutional case.” Connick, 461 U.S. at 149,103 S.Ct. at 1691. Instead, the content, context and form of the letter determine whether the speech addresses a matter of public concern thereby implicating the First Amendment.

[¶ 12.] In Connick v. Myers, the United States Supreme Court found that a questionnaire distributed by an assistant district attorney during work hours to other assistant district attorneys containing questions about office transfer policy, office morale, the need for a grievance committee, and the level of confidence in supervisors did not address a matter of public concern. Id. at 148, 103 S.Ct. at 1690 (finding, however, that the question of whether employees felt pressured to work in political campaigns was a matter of public concern). Although the dispute with her supervisor centered on office transfer policy, the Court viewed many of the additional issues addressed by the questionnaire as mere extensions of that dispute. Id. The fact that the employee dispersed these questionnaires during work hours because she was upset over her recent transfer led the Court to determine that her concerns were simply “one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre.” Id. at 148, 103 S.Ct. at 1691.

[¶ 13.] Gilbert claims in her response letter to the Department that she wrote the letter to the tribal council in her “capacity as education coordinator.” In Garcetti v. Ceballos, the United States Supreme Court held that “when public em ployees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” 126 S.Ct. at 1960. While Gilbert’s official duties as education coordinator did not require her to criticize the tribal chairman or her fellow employees, she claims that her position as education coordinator gave her the authority to make such a critique. While not dispositive, this fact is relevant to the context and content of Gilbert’s letter. See id. at 1959. Gilbert also indicated that the context of the letter involved her complaint about Montoya’s alleged statement about her and Montoya’s recent appointment as secretary to the tribal council. Gilbert explained her motive in her reply letter to the Department:

In May of 2004, prior to run-off elections for the tribe, it was reported to me that Donalda Montoya, Payroll Clerk, made a statement to an employee at the Clinic, that she was told by a member of Council that if I decided to run for election for a position on Council that my nominating petition would be thrown out due to my conviction as a prostitute. This statement was made on company time, was vicious, untrue and malicious slander. I reported the incident to my supervisor and expected Donalda to be disciplined. I later found that nothing was done, by my supervisor or HR, Deb Wakeman on my behalf.

Nothing in her explanation to the Department or in her testimony indicated that she was speaking as a citizen on a matter of public concern. In fact, she claimed to be speaking in her capacity as education coordinator.

[¶ 14.] Additionally, the content and form of Gilbert’s letter involved internal complaints about other employees and particularly the political appointment of Montoya as tribal secretary. Gilbert addressed these internal complaints to the Tribe’s executive committee. Although the internal nature of her letter is not dispositive, when coupled with the nature of her complaints, we conclude that when Gilbert wrote the letter, she was not speaking as a citizen on matters of public concern. See id.

[¶ 15.] Thus considering the context, content and form of Gilbert’s letter, we cannot say that the trial court erred when it concluded that the letter did not contain matters of public concern. Since Gilbert’s statements were not of public concern, the First Amendment of the United States Constitution is not applicable and our inquiry ends.

Violation of Gilbert’s Right to Free Speech Under Article VI, Section 5 of the South Dakota Constitution

[¶ 16.] Gilbert contends that Article VI, Section 5 of South Dakota’s Constitution provides broader protection than the United States Constitution’s First Amendment. Based on this contention, Gilbert argues that the Department’s denial of UI benefits violated her right to freedom of speech under South Dakota’s Constitution. While we have held that the press is afforded no greater rights under Article VI, Section 5, the facts before us present a matter of first impression. See Rapid City Journal Co. v. Circuit Court of the Seventh Judicial Circuit, 283 N.W.2d 563, 568 (S.D.1979) (considering the right afforded to members of the press to access jury voir dire proceedings).

[¶ 17.] In considering whether to apply a broader interpretation of our state constitution, we consider the text, history, and purpose of the constitutional provision. State v. Schwartz, 2004 SD 123, ¶ 57, 689 N.W.2d 430, 445 (Konenkamp, J., concurring). In doing so, we are not bound to reach the same result as the United States Supreme Court finds in the Federal Constitution. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982). The provisions of South Dakota’s Constitution have legal force apart from the federal constitution. Schwartz, 2004 SD 123, ¶ 33, 689 N.W.2d 430, 438 (Konenkamp, J., concurring).

[¶ 18.] The best argument for interpreting our State Constitution differently from the Federal Constitution is that the texts of the parallel provisions are different. The relevant portion of Article VI, Section 5 reads as follows:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.

The federal counterpart to Article VI, Section 5, the First Amendment to the United States Constitution, reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const, amend. I. Although worded differently, both provisions guarantee freedom of speech and the press. However, it is not clear whether this difference in language was intended to provide broader protection under South Dakota’s Constitution.

[¶ 19.] Article VI, Section 5 of South Dakota’s Constitution originated at South Dakota’s Constitutional Convention of 1885. On September 14,1885, the committee on the Bill of Rights submitted a draft of the Bill of Rights to the convention. The proposed language of Article VT, Section 5 mirrored the language in South Dakota’s Constitution, which was adopted on October 1, 1889 by popular vote. Article VI, Section 5 remains the same today.

[¶ 20.] On September 17, 1885, the Convention discussed a report on the Bill of Rights and addressed each provision of South Dakota’s Bill of Rights individually. However, the original manuscript of the discussions regarding Article VI, Section 5 was lost and could not be included in the published debates. This unfortunately gives us no insight into the thoughts and reasoning of the individuals who debated Section 5 of South Dakota’s Bill of Rights.

[¶ 21.] Despite the absence of this particular debate, it is clear that whatever debate took place regarding Section 5, there were no changes made to the language of Section 5 proposed by the committee on September 14, 1885. We also note that the manuscripts of the debates regarding other provisions in the Bill of Rights centered on the language of similar guarantees found in other state’s constitutions at that time. Therefore, we find no indication that the framers intended to provide more expansive protection through South Dakota’s Bill of Rights than that provided by the First Amendment of the United States Constitution.

[¶ 22.] It is also evident that other states’ constitutions played a role in the drafting of South Dakota’s Bill of Rights since the majority of states have free speech provisions similar to that of South Dakota. In the early part of the twentieth century, this Court noted that nearly all of the American states had adopted a similarly worded free speech amendment. State v. Kirby, 36 S.D. 188, 154 N.W. 284, 286 (1915); see also American Bush v. City of South Salt Lake, 140 P.3d 1235, 1247 (Utah 2006)(noting that “[a]s of the year 2000, 43 state constitutions contained the ‘freedom of speech’ tempered by a ‘responsibility for abuse’ clause.”); State v. Wicklund, 589 N.W.2d 793, 799 (Minn.1999) (noting that 33 states’ free speech provisions contained the following language: “all persons may freely speak ... on all subjects being responsible for the abuse of such right.”). The majority of states with almost identical language have interpreted their state constitutional free speech provisions as coextensive with their federal counterparts. As pointed out by Justice Konenkamp, although we must address questions of constitutional interpretation “autonomously [to] develop a coherent body of South Dakota constitutional law,” we do look to other states for guidance. Schwartz, 2004 SD 123, ¶33, 689 N.W.2d 430, 438 (Konenkamp, J., concurring).

[¶ 23.] The only authority Gilbert advances for a broader interpretation of South Dakota’s Constitution is California’s interpretation of their similarly worded constitutional provision on free speech. However, California has made such determinations in the context of compelled speech, obscene speech, and the absence of state action. See Gerawan Farming, Inc. v. Lyons, 24 Cal.4th 468, 101 Cal.Rptr.2d 470, 12 P.3d 720, 735 (2000) (stating that the California right to free speech, unlike the First Amendment, runs against the world and is unlimited in scope). In Gilbert’s case, there is no question that there is state action because the South Dakota Unemployment Insurance Division denied Gilbert UI benefits. Furthermore, even if we interpret “public concern” liberally, we could not conclude that her speech was more than the airing of internal grievances. Interpreting South Dakota’s constitution as affording greater protection than the Federal Constitution is a “significant undertaking for any state court.” Wicklund, 589 N.W.2d at 799. Under the facts of this case, we do not find greater protection in Article VI, Section 5 and decline to extend its protection further than the First Amendment of the United States Constitution.

[¶ 24.] Gilbert also argues that the administrative law judge’s findings were “clearly erroneous in light of the entire evidence in the record.” However, Gilbert cites to nothing in the record nor any authority to support her argument. Therefore, we find her argument is without merit. Chapman v. Chapman, 2006 SD 36, ¶ 31, 713 N.W.2d 572, 580.

[¶ 25.] Affirmed.

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

      . The Tribe instituted the political activity policy because of a compact the Tribe entered into with the State of South Dakota on gambling which also prohibits the Tribe and its employees from engaging in political activity.

      .Misconduct is defined by SDCL 61-6-14.1 as:
      1. Failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; or
      2. Substantial disregard of the employer's interest or of the employee’s duties and obligations to the employer; or
      3. Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of the employee; or
      4. Carelessness or negligence of such degree or recurrence as to manifest equal culpability or wrongful intent.
      However, mere inefficiency, unsatisfactory conduct, failure to perform as the result of inability or incapacity, a good faith error in judgment or discretion, or conduct mandated by a religious belief which belief cannot be reasonably accommodated by the employer is not misconduct.

      .The Tribe’s political activity policy reads as follows:
      The tribal administration must be able to operate as fairly and effectively as possible and to protect the rights of its employees by ensuring that they are free from political influence and are able to administer programs without bias or favoritism. It is therefore the policy of the Tribe that employees not engage in political activities during work hours. Employees are strictly prohibited from engaging in political activity during work hours or from using tribal equipment or property for political activity as defined below. Employee shall not be subject to influence or pressure from Executive Committee members or candidates for office.

        Political activity includes, but is not necessarily limited to, the following: preparing, circulating, signing, or soliciting signatures to petition for recall, referendum or initiative, enrollment petitions, election petitions or any other petition involving tribal matters or affairs; any activity intended to influence the out-come of a tribal election or a vote on a matter involving tribal affairs, whether verbal or written, that is intended to be divisive towards the tribal government.
      Violation of this policy will result in disciplinary action, up to and including termination.

      . In its entirety, Article VI, Section 5 of South Dakota’s Constitution provides:
      Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the fact and the law under the direction of the court.

      . In volume one, page 281, of South Dakota’s Constitutional Debates, there is a note from the Editor that reads: "A page of the original manuscript of the debates has evidently been lost at this point, covering the consideration of Sections 2, 3, 4 and 5, of the bill of rights.”

      . When a comparison was made, it was usually with the constitutions of California, Illinois, or Iowa.

      . See, e.g., Fiesta Mall Venture v. Mecham Recall Committee, 159 Ariz. 371, 767 P.2d 719, 724 (Ariz.Ct.App.1988); Citizens for Ethical Government, Inc. v. Gwinnett Place Assocs., L.P., 260 Ga. 245, 392 S.E.2d 8, 9-10 (1990); People v. DiGuida, 152 Ill.2d 104, 178 Ill.Dec. 80, 604 N.E.2d 336, 344-45 (1992); State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997); Woodland v. Michigan Citizen’ Lobby, 423 Mich. 188, 378 N.W.2d 337, 346-47 (1985); State v. Wicklund, 589 N.W.2d 793, 799-801 (Minn.1999); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708, 712 (N.C.1981); Eastwood Mall Inc. v. Slanco, 68 Ohio St.3d 221, 626 N.E.2d 59, 61 (Ohio 1994); Charleston Joint Venture v. McPherson, 308 S.C. 145, 417 S.E.2d 544, 548 n. 7 (SC.1992); South-center Joint Venture v. National Democratic Policy Comm., 113 Wash.2d 413, 780 P.2d 1282, 1291-92 (1989); Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832, 836-37 (1987).

      . Article I, Section 2 of California’s Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
      The California Court of Appeals recently noted that the "state Constitution’s free speech clause is at least as broad, and in some ways broader, than the comparable provision of the federal Constitution.” ARP Pharmacy Serv., Inc., v. Gallagher Bassett Serv., Inc., 138 Cal.App.4th 1307, 1314, 42 Cal.Rptr.3d 256 (2006).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2006 SD 107
    In the Matter of the ESTATE OF Robert F. BARTHOLOW, Deceased.
    No. 24041.
    Supreme Court of South Dakota.
    Considered on Brief Oct. 2, 2006.
    Decided Nov. 29, 2006.
    Robert R. Schaub and Herb C. Sundall of Larson, Sundall, Larson, Schaub & Fox, Chamberlain, South Dakota, Attorneys for plaintiff and appellant, Estate of Robert F. Bartholow.
   PER CURIAM.

[¶ 1.] The Estate of Bartholow (Estate) appeals the circuit court order interpreting and reforming the trust provisions contained in Robert F. Bartholow’s will. We dismiss the appeal.

FACTS AND PROCEDURE

[¶ 2.] Bartholow passed away on February 1, 2005. On February 22, 2005, a petition to probate his will was filed. An order admitting the will to probate and appointing Betty Isburg as personal representative was entered on March 29, 2005. On December 14, 2005, a “petition for nunc pro tunc order interpreting and reforming the trust provisions of Robert F. Bartho-low’s will” was filed with the circuit court. That petition sought reformations to the will to obtain favorable charitable tax treatment. The trust provision of the will provided for the educational benefit of children seeking secondary education in South Dakota. The requested revisions would purportedly bring the trust into compliance with Internal Revenue provisions to create an exempt organization. A notice of hearing on this request was sent to the interested parties, the United States Attorney, Attorney General and Internal Revenue Service. No objection was noted by any of these parties.

[¶ 3.] The circuit court entered an order nunc pro tunc interpreting and reforming the trust provisions effective January 6,1964. That order directed that the trust be interpreted as including the Internal Revenue provisions requested to achieve favorable tax status. The order conformed precisely to the requested provisions sought by Estate. Notice of entry of that order was served on the previously mentioned parties. No objection or notice of appearance was entered. Nevertheless, Estate filed a notice of appeal to this Court from the order entered below. In its brief, the issue stated for review is as follows:

Should this Court summarily affirm the trial court’s decision thereby giving it finality and assuring that the estate has an estate tax charitable deduction and that the trust created by decedent’s will be exempt from federal income taxes?

The Attorney General’s office and the Department of Justice Tax Division submitted letters indicating they will not be filing a response or taking a position in the appeal. Because this Court has no jurisdiction to consider this appeal as there is no aggrieved party, we dismiss for lack of appellate jurisdiction.

DISCUSSION

[¶ 4.] This Court is “required to take notice of jurisdictional questions, whether presented by the parties or not.” Wold Family Farms, Inc. v. Heartland Organic Foods, Inc., 2003 SD 45, ¶ 12, 661 N.W.2d 719, 723. In this unusual situation, Estate is appealing from an entirely favorable order entered by the circuit court. In fact, the circuit court entered Estate’s requested relief verbatim. There are no other parties involved in this appeal and no one has objected to any action taken by the circuit court.

[¶ 5.] “As a general rule, an appellant must not only have an interest in the subject matter in controversy, but must also be prejudiced or aggrieved by the decision from which he appeals.” Carlson v. West River Oil Co., 75 S.D. 333, 335, 64 N.W.2d 294, 295 (1954). “The right of appeal is limited to aggrieved parties and when a judgment is rendered in a party’s favor, that person cannot be an aggrieved party unless the adjudication is, in some way, prejudicial to that party.” Quinn v. Mouw-Quinn, 1996 SD 103, ¶ 20, 552 N.W.2d 843, 847. While an exception to this rule has been recognized in certain cases where the prevailing party may nevertheless be prejudiced by the adjudication, that exception is inapplicable here. See Jones v. Happen, 359 N.W.2d 894, 895 (S.D.1984); Miller v. Scholten, 273 N.W.2d 757, 760-62 (S.D.1979)(tracing the history of the aggrieved party requirement in South Dakota jurisprudence). The adjudication entered in this matter can not be characterized as prejudicial to Estate. In the absence of an aggrieved party it is appropriate to dismiss the attempted appeal. See e.g., Jones, 359 N.W.2d at 895; Bottum v. Herr, 83 S.D. 542, 549, 162 N.W.2d 880, 884 (1968); Carlson, 75 S.D. at 335, 64 N.W.2d at 295 (dismissing attempted appeals from non-aggrieved parties).

[¶ 6.] The facts of this case are closely analogous to those in Massengill v. Massengill, 36 Tenn.App. 385, 255 S.W.2d 1018 (1952). In that case, appellant conceded that the decree entered below was in her favor and no assignments of error were made concerning the trial court’s ruling interpreting a trust agreement. Id. at 1018. Rather, the appellant maintained that “it is necessary at this time, under the Federal law, to procure an appellate determination of the interpretation of this Trust Agreement in aid of the administration of this Trust, and in order that the rights of the beneficiaries thereunder shall not be prejudiced.” Id. at 1019. In denying the attempted appeal, the court noted “it is not within the province of the appellate courts to decide abstract, hypothetical, or moot questions, disconnected from the granting of actual relief, however important and however simple they may be.” Id.

[¶ 7.] In denying the petition for rehearing in that same opinion, the court stated “[o]nly a party dissatisfied with the judgment or decree of the [lower court] may appeal to the Supreme or Appeals Court and have a re-examination, in that court, of the whole matter of law and fact appearing in the record.” Id. at 1020. The court also noted:

Apparently the petitioner has overlooked the fact that the [lower court], a court of record in this State, assumed jurisdiction of the cause and, as admitted by petitioner, decided the issues involved therein satisfactorily to her, and a decree of that court is as final and as binding on the parties and issues involved as would be a decision of this court.

Id. This rationale is equally applicable in this situation. The circuit court has assumed jurisdiction and modified the trust documents precisely as Estate petitioned. There having been no appeal from a party aggrieved by that decision, this Court has no jurisdiction to proceed on the merits in a review of the circuit court’s decision. According to this Court’s well-settled jurisprudence, this appeal is dismissed.

[¶ 8.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . Estate contends that a judgment is required by this Court to bind the Internal Revenue Service to the circuit court's ruling. In support of that position it generally cites Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). The discussion in Bosch relates to the degree of deference federal courts should give state courts in interpreting their own law. Nothing in that decision can be construed to suggest this Court should ignore general rules of appellate procedure to provide a rubber stamp affir-manee for the benefit of a victorious party.


author: STREIT, Justice.

text:
    Martin J. BAHL, Linda C. Bahl, and Terrence G. Bahl, Appellants, v. THE CITY OF ASBURY, Iowa, and the City Council of Asbury, Iowa, Appellees.
    No. 04-1540.
    Supreme Court of Iowa.
    Dec. 22, 2006.
    See also 656 N.W.2d 336.

      Brian J. Kane and D. Flint Drake of Kane, Norby & Reddick, P.C., Dubuque, for appellants.
    Stephen J. Juergens of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Du-buque, for appellees.
   STREIT, Justice.

“A rose may still be a rose if called by another name but not so for manufactured housing.” We are called on to determine whether a “mobile home” is a “manufactured home.” Developers claim the City of Asbury unlawfully discriminates against “mobile home” parks through zoning restrictions. Developers contend Iowa law requires “mobile homes” — the kind with hitches, wheels, and/or axles — be treated the same as traditional homes built on site. We find the statute in question, which prohibits cities from discriminating against “manufactured housing,” only pertains to factory-built homes that sit on permanent foundations. Because developers’ proposal calls for “mobile homes,” the city may treat it differently in comparison to other types of housing developments. Accordingly, we affirm the district court’s declaratory judgment.

I. Facts and Prior Proceedings

The Bahls own real estate in Asbury which is zoned A-l for agricultural use. Since 1997, the Bahls have repeatedly sought to have their land rezoned in a manner that would allow them to develop a community of prefabricated homes to be called “Oak Meadows.” The Bahls’ rezoning applications have been resisted by neighbors and Asbury’s city counsel.

After the Bahls’ second request for rezoning was denied in 1999, they filed suit alleging Asbury’s zoning ordinance requiring “mobile home” parks to be located only in R-4 (high density residential) districts violated Iowa Code section 414.28A (1999). Under section 414.28A, “[a] city shall not adopt or enforce zoning or subdivision regulations or other ordinances which disallow or make infeasible the plans and specifications of land-leased communities because the housing within the land-leased community will be manufactured housing.”

The district court held Asbury violated section 414.28A because one reason for denying the Bahls’ rezoning request was the fact the proposed development was a land-leased community of manufactured housing. On appeal, we affirmed. See Bahl v. City of Asbury, 656 N.W.2d 336 (Iowa 2002) (“Bahl I”).

In Bahl /, we said “the plain language of section 414.28A ... reveals a legislative intent to require equal treatment of land-leased communities that are composed of manufactured homes with similar communities composed of site-built housing.” Id. at 345.

We interpreted Asbury’s definition of “mobile home” in its zoning ordinance to include all types of prefabricated housing. Id. at 337 n. 1. In Bahl I, neither party disputed the Bahls’ proposed development was a land-leased community of manufactured housing within the meaning of chapter 414. Id. Nor did the parties dispute the Bahls’ project was subject to the restrictions imposed on “mobile home” parks by the City’s zoning ordinance. Id. Notably, the Iowa legislature used the terms “manufactured housing” and “manufactured home” in chapter 414 of the Code while Asbury used the term “mobile home” in its zoning ordinance. Apparently, the parties were under the impression the terms could be used interchangeably.

After Bahl I, Asbury amended its zoning ordinance so the terms “mobile home” and “manufactured home” are now mutually exclusive. Under the current ordinance, a “manufactured home” means a “factory-built structure” on a “permanent foundation,” which does not have a “permanent hitch” or any “wheels or axles” permanently attached to its frame. A “mobile home” is defined as all other factory-built structures — i.e. homes with permanent hitches, wheels and/or axles. Asbury also defined “land-leased community” in its ordinance. A “land-leased community” is any “tract of land under common ownership upon which 10 or more occupied manufactured homes are harbored .... ”

The amendments to Asbury’s zoning ordinance require manufactured homes be treated the same as site-built housing. Land-leased communities for manufactured housing are permitted under the same zoning requirements as for site-built communities. However, under Asbury’s amended zoning ordinance, mobile home parks are limited to planned unit developments (PUD) in R-3 or R-4 zones. The effect of the City’s changes is to treat mobile home parks differently than either site-built housing or manufactured housing as that term is used in Asbury’s zoning ordinance.

Because the Bahls’ development proposal includes mobile homes as defined by Asbury’s current zoning ordinance, the Bahls filed a declaratory judgment action in the district court asking the court to find Asbury’s current zoning ordinance violates Iowa Code section 414.28A (2003). The district court found in favor of As-bury. It stated:

Mobile homes as defined in the city’s zoning ordinance are not protected by §§ 414.28 or 414.28A. Asbury defines mobile homes as structures the Iowa legislature has excluded from protection. Asbury’s treatment of exempted struc-tares does not offend §§ 414.28 or 414.28A.

The Bahls appeal.

II. Standard of Review

The standard of review for a declaratory judgment action tried at law is for correction of errors. Am. Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 575 (Iowa 2004) (citing United Fire & Cas. Co. v. Shelly Funeral Home, Inc., 642 N.W.2d 648, 651 (Iowa 2002)).

III. Merits

The issue before us is whether Asbury’s treatment of “mobile home” parks under its current zoning ordinance violates section 414.28A. Section 414.28A provides:

A city shall not adopt or enforce zoning or subdivision regulations or other ordinances which disallow or make infeasible the plans and specifications of land-leased communities because the housing within the land-leased community will be manufactured housing.
“Land-leased community ” means any site, lot, field, or tract of land under common ownership upon which ten or more occupied manufactured homes are harbored, either free of charge or for revenue purposes, and shall include any building, structure, or enclosure used or intended for use as part of the equipment of the land-leased community.... A manufactured home located in a land-leased community shall be taxed under section 435.22 as if the manufactured home were located in a mobile home park.

Section 414.28A does not define “manufactured home” or “manufactured housing.” Asbury contends the definition found in section 414.28 also applies to section 414.28A. Section 414.28 states:

As used in this section, “manufactured home” means a factory-built structure, which is manufactured or constructed under the authority of 42 U.S.C. § 5403 and is to be used as a place for human habitation, but which is not constructed or equipped with a permanent hitch or other device allowing it to be moved other than for the purpose of moving to a permanent site, and which does not have permanently attached to its body or frame any wheels or axles.

(Second emphasis added.) In other words, according to Asbury, section 414.28A only protects foundation-ready prefabricated homes from discrimination and does not protect prefabricated homes with permanent hitches, axles and/or wheels. Using this interpretation of section 414.28A, As-bury contends its zoning ordinance satisfies section 414.28A because it requires foundation-ready prefabricated homes to be treated the same as traditional on-site built homes. Asbury argues section 414.28A does not prohibit the city from restricting the location of mobile home parks (i.e. two or more prefabricated homes with hitches, wheels and/or axles).

The Bahls claim Asbury’s amended zoning ordinance “is a transparent attempt through word play to circumvent a banned form of discrimination .... ” The Bahls make two arguments on appeal. First, they argue our decision in Bahl I established the “law of the case” and consequently the prefabricated homes with hitches, axles and/or wheels described in their rezoning application are “manufactured homes” for purposes of their continuing application. Second, the Bahls disagree with Asbury’s interpretation of section 414.28A. The Bahls contend “manufactured home” has a different meaning in section 414.28A than it does in section 414.28. According to the Bahls, section 414.28 protects foundation-ready prefabricated homes from discrimination while section 414.28A protects prefabricated homes with axles, hitches and/or wheels. The Bahls therefore conclude section 414.28A prevents Asbury from discriminating against its proposed development.

A. Law of the Case

The Bahls contend the law of the ease doctrine prevents Asbury from “argu[ing] that the type of homes proposed in the Bahls’ application (mobile homes) are not ‘manufactured homes’ within the meaning of the City’s ordinance or Chapter 414.” They base this contention on the fact the parties in Bahl I did “not dispute that the development proposed by the Bahls is a land-leased community of manufactured housing within the meaning of chapter 414.” Bahl I, 656 N.W.2d at 337 n. 1.

Under the law of the case doctrine, “an appellate decision becomes the law of the case and is controlling on both the trial court and on any further appeals in the same case.” United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103 (Iowa 2000) (citing Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632 (Iowa 1991)). The doctrine is based on a public policy against reopening matters which have already been decided. Id. (citing Wolfe v. Graether, 389 N.W.2d 643, 651 (Iowa 1986)). Thus, issues decided by an appellate court generally cannot be reheard, reconsidered, or relitigated. Id. (citing 5 C.J.S. Appeal and Error § 975, at 476-77 (1993)). The appellate court decision is final as to all questions decided and the trial court is obligated to follow that decision. Id. (citing 5 C.J.S. Appeal and Error § 975, at 476-77).

The law of the case doctrine does not apply to the present case because we were not asked in Bahl I to determine the meaning of “manufactured home” as the term is used in section 414.28A. The doctrine applies “only to those questions that were properly before us for consideration and passed on” and “[a] question not passed on is not included” under the doctrine. In re Lone Tree Cmty. Sch. Dist., 159 N.W.2d 522, 526 (Iowa 1968) (citations omitted). Thus, we now turn to section 414.28A and the meaning of “manufactured home.”

B. Iowa Code Section 414.28A

Section 414.28A states “[a] city shall not adopt or enforce zoning or subdivision regulations or other ordinances which disallow or make infeasible the plans and specifications of land-leased communities because the housing within the land-leased community will be manufactured housing.” A land-leased community is any property “under common ownership upon which ten or more occupied manufactured homes are harbored .... ” Iowa Code § 414.28A. Section 414.28A does not include a definition of “manufactured homes.” The definition, of course, is critical to our determination of the scope of the statute.

“The polestar of statutory interpretation is to give effect to the legislative intent of a statute.” State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999) (citing Harris v. Olson, 558 N.W.2d 408, 410 (Iowa 1997)). “If the legislature has not defined words of a statute, we may refer to prior decisions of this court and others, similar statutes, dictionary definitions and common usage.” Iowa Dep’t of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002) (citing Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 761 (Iowa 1998)).

The Bahls argue “[i]n all previous proceedings, the City, the City’s legal counsel, the courts, and the participants in the public hearings have used the terms ‘mobile home’ and ‘manufactured home’ interchangeably, indicating a general understanding that the mobile homes proposed by the Bahls were in fact ‘manufactured homes’ and protected by 414.28A.” They also point to decisions from other jurisdictions finding the terms “mobile home” and “manufactured housing” are synonymous. See, e.g., Wilmoth v. Wilcox, 734 S.W.2d 656, 658 (Tex.1987) (noting in the late 1970’s, the industry began using the term “manufactured home” instead of “mobile home”). But the cases the Bahls cite address restrictive covenants, not the statute at issue here. We are only concerned with how the Iowa legislature defines “manufactured home.” In this particular case, we need not look beyond sections 414.28 and 414.28A because they offer enough clues to determine the legislature’s intent.

Section 414.28A states “[a] manufactured home located in a land-leased community shall be taxed under section 435.22 as if the manufactured home were located in a mobile home park.” (Emphasis added.) The words “as if’ indicate the legislature understood the difference between the terms manufactured home and mobile home and did not intend “manufactured home” to include mobile homes.

Because of the reference to section 435.22, the Bahls invite us to consider the definitions found in chapter 435, which pertains to taxing of mobile homes and manufactured housing in parks and communities. We think the Bahls are reading too much into the reference to section 435.22. The statute reads “[a] manufactured home ... shall be taxed under section 435.22 as if the manufactured home were located in a mobile home park.” Iowa Code § 414.28A (emphasis added). It does not say a manufactured home is defined in chapter 435.

We think it'makes more sense to refer to a definition within the chapter at issue. See State v. Hawk, 616 N.W.2d 527, 529 (Iowa 2000) (“[Cjourts are obliged to consider a challenged statute in its entirety and in pari materia with other pertinent statutes.”). Section 414.28, which protects manufactured homes located outside of a manufactured home community from discrimination, defines “manufactured home.” Section 414.28 states:

As used in this section, “manufactured home ” means a factory-built structure, which is manufactured or constructed under the authority of 42 U.S.C. § 5403 and is to be used as a place for human habitation, but which is not constructed or equipped with a permanent hitch or other device allowing it to be moved other than for the purpose of moving to a permanent site, and which does not have attached to its body or frame any wheels or axles.

Thus, the definition found in section 414.28 is limited to prefabricated homes intended to be placed on permanent foundations. There is no indication the legislature intended to expand the definition of “manufactured home” for purposes of section 414.28A.

In Bahl I, we said “it is instructive in our search for the meaning of section 414.28A to consider what the legislature intended when it enacted section 414.28.” Bahl I, 656 N.W.2d at 342. This is because sections 414.28A and 414.28 are “very similar.” Id. at 341. We said:

There appears to be very little difference between section 414.28 and section 414.28A with respect to the operative language. The primary distinction of course is that section 414.28 applies to “residential structure[s]” whereas section 414.28A governs “land-leased communities.”

Id. at 342. Therefore, it is logical to use the definition of “manufactured home” found in section 414.28 to interpret section 414.28A. When we do, it is obvious the legislature only intended section 414.28A to protect foundation-ready prefabricated housing from discrimination. Our decision in Bahl I supports this conclusion. There, we said:

[T]he plain language of section 414.28A ... reveals a legislative intent to require equal treatment of land-leased communities that are composed of manufactured homes with similar communities composed of site-built housing. Our interpretation of section IH.Z8A does not mean the City must allow mobile home parks in all zoning districts. Nor does it mean the City cannot regulate manufactured housing developments. The statute merely mandates that land-leased communities of manufactured housing be allowed in any district in which similar communities of site-built housing are allowed, under the same terms and conditions imposed on such developments containing traditional housing.

Id. at 345 (emphasis added). Thus, As-bury’s zoning ordinance requiring only foundation-ready homes be given the same treatment as site-built homes and relegating prefabricated homes with hitches, wheels, and/or axles to PUD R-3 and PUD R-4 is permissible. As the district court said,

Iowa has never protected housing that comes with a permanent hitch and axles. To the extent mobile homes come with permanent hitches and axles, they have never been a protected form of housing in Iowa and were, in fact, specifically excluded from protected status.

We affirm the district court’s judgment.

IV. Conclusion

Section 414.28A requires land-leased communities that are composed of manufactured homes be treated equally to similar communities composed of site-built housing. Manufactured homes means foundation-ready prefabricated homes. The statute does not apply to mobile homes — the kind of housing with hitches, wheels, and/or axles. Thus, Asbury may limit mobile home parks to high density PUD zoning districts.

AFFIRMED.

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

      . A line from the ever-witty Chief Judge Alan Pearson’s decision upholding Asbury’s city zoning ordinance. Bahl v. City of Asbury, No. CVCV053776, slip op. at 4 (D.Iowa Sept. 13, 2004).

      . We use the term "prefabricated home” because the parties disagree on the meaning of "mobile home” and "manufactured home.”

      . In the current action, the district court noted “it appears that the Supreme Court [in Bahl /] misread the definition of 'mobile home’ under the city zoning ordinance.” However, we need not revisit that ordinance because this appeal concerns Asbury's revised ordinance, which clearly distinguishes between "mobile homes" and "manufactured homes.”

      . Asbury defines a "mobile home park” as a "tract of land upon which two (2) or more occupied mobile homes are harbored, either free of charge or for revenue purposes, whether or not site-built homes or manufactured homes are also in the same development site

      . A PUD is a district described as encouraging flexible and innovative design in the development of an appropriate site. PUDs are not typically subject to normal zoning restrictions. Instead, the project is negotiated between the developer and the city on a case-by-case basis.

      . All further references to the Iowa Code are to the 2003 version.

      . Under section. 414.28,
      A city shall not adopt or enforce zoning regulations or other ordinances which disallow thé plans and specifications of a proposed residential structure solely because the proposed structure is a manufactured home. However, a zoning ordinance or regulation shall require that a manufactured home be located and installed according to the same standards, including but not limited to, a permanent foundation system, set-back, and minimum square footage which would apply to a site-built, single family dwelling on the same lot, and shall require that the home is assessed and taxed as a site-built dwelling.... When units are located outside a manufactured home community or mobile home park, requirements may be imposed which ensure visual compatibility of the permanent foundation system with surrounding residential structures.

      . In Bahl I, we said “the Asbuiy zoning ordinance contravenes section 414.28A by relegating ‘mobile home parks,' not all condominium-type communities, to R-4 zoning districts.” Bahl I, 656 N.W.2d at 345 (emphasis added). We used the term "mobile home parks” only because that was the term Asbuiy used in its zoning ordinance in effect at the time of the previous litigation. According to Asbuiy, under its prior zoning ordinance manufactured homes (i.e. the foundation-ready kind) were included within its broad definition of "mobile homes.” In contrast to the prior zoning ordinance, Asbuiy's current ordinance treats "mobile homes” and "manufactured homes” as mutually exclusive. We did not imply in Bahl I that prefabricated homes with hitches, wheels, and/or axles are protected under section 414.28A.


author: MAHAN, J.

text:
    Dale GRUNWALD and Robert S. Gallagher, Plaintiffs-Appellees, v. WELLS FARGO BANK, N.A., Defendant-Appellant.
    No. 04-0641.
    Court of Appeals of Iowa.
    Nov. 23, 2005.
    Diane Kutzko and Wesley B. Huisinga of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellant.
    Robert S. Gallagher of Gallagher, Millage & Gallagher, P.L.C., Davenport, for appellees.

      Heard by HUITINK, P.J., and HECHT and YAITHESWARAN, JJ., but decided by HUITINK, P.J., and MAHAN and HECHT, JJ.
   MAHAN, J.

Wells Fargo Bank, N.A. (Wells Fargo) appeals from the district court’s grant of summary judgment in favor of Dale Grun-wald and Robert Gallagher (Plaintiffs) in an action seeking payment pursuant to a letter of credit. We reverse and remand.

I. Scope of Review

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admission 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 a judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004). There is no fact issue if the only dispute concerns the legal consequences flowing from the undisputed facts. Luttenegger v. Conseco Fin. Servicing Corp., 671 N.W.2d 425, 431 (Iowa 2003). Therefore, our review is limited to whether a genuine issue of material fact exists and whether the district court correctly applied the law. Id.; see also Iowa R. App. P. 6.4.

II. Background Facts

The facts are undisputed. Plaintiffs were the beneficiaries under an irrevocable letter of credit issued by Wells Fargo, dated August 27, 2001. The letter of credit was issued as a supersedeas bond allowing Quad City Quality Service, Inc., Grunwald’s former employer, to appeal a judgment obtained by Grunwald and a judgment for the fees payable to his attorney, Gallagher. The letter of credit provided, in pertinent part: “The draft [demand for payment] must also be accompanied by the original of this Letter of Credit for our endorsement on this Letter of Credit of our payment of such draft.” (Emphasis added.) In addition, the letter of credit provided “This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500 [U.C.P. 500], and engages us in accordance therewith.”

Following resolution of the appeal, Plaintiffs made written demand on August 12, 2003, for payment of $152,122.77 pursuant to the letter of credit. The amount represented the judgment amount plus attorney fees. On August 14, Wells Fargo notified Plaintiffs of discrepancies in then-demand. The discrepancy at issue in the parties’ motions for summary judgment and on appeal is that the original letter of credit did not accompany the Plaintiffs’ written draft for payment.

On August 19, Plaintiffs presented a revised written demand for payment. The letter accompanying the demand stated, “The original letter of credit was never produced by Quad City Quality Service, Inc., or its lawyer. We have searched diligently to find the same, but cannot.” Affidavits executed by Grunwald and Gallagher accompanied the letter.

Wells Fargo again denied the demand on August 21 for failure to present the original letter of credit. The letter of credit expired on September 1, 2003.

III. Proceedings

Plaintiffs filed a petition in district court on August 27, 2003, alleging wrongful dishonor of letter of credit, negligence by Wells Fargo, and unjust enrichment. Wells Fargo filed an answer denying all claims.

Plaintiffs filed a motion for summary judgment, a statement of undisputed facts, and an affidavit executed by Gallagher. In their motion, Plaintiffs argued they had “fully complied with the letter of credit consistent with the uniform customs and practices for documentary credits [Iowa Code § 554.5108 (2003)] and the cases which interpret the federal version of the U.C.P.”

Wells Fargo filed a resistance to Plaintiffs’ motion and its own motion for summary judgment. It filed a brief in support of its resistance and motion and the affidavit of Brian T. O’Connell, a Vice President at Wells Fargo. In its motion, Wells Fargo claimed Plaintiffs’ failure to strictly comply with the terms of the letter of credit entitled Wells Fargo to deny the demand for payment as a matter of law.

The day of the summary judgment hearing, Plaintiffs submitted the affidavit of John C. Bradley, a banker employed by Quad City Bank and Trust. Bradley stated, “I believe it to be the standard of practice of financial institutions who regularly issue letters of credit in this geographic area that it would be expected that said institutions would honor the presentment of an unaltered photocopy of a letter of credit if accompanied by an affidavit from the beneficiary that the original document was lost, stolen, or destroyed.”

The district court filed its ruling on the motions for summary judgment on March 24, 2004. It relied heavily on the Bradley affidavit, concluding Plaintiffs strictly complied with the terms of the letter of credit by supplying a photocopy of the original letter of credit, together with an affidavit authenticating the copy. The court continued:

It is the standard practice of financial institutions that regularly issue letters of credit in this geographic area to give such documents the same force and effect as the original document. Hence, plaintiffs have complied precisely with the terms and conditions of the letter of credit. [Wells Fargo] has failed to observe the applicable standard practice by dishonoring plaintiffs’ presentation for payment, and has not established that payment under these circumstances would generally undermine the usefulness and attractiveness of letters of credit.

The court granted Plaintiffs’ motion for summary judgment and denied Wells Fargo’s motion for summary judgment. Wells Fargo appeals.

IV. Strict Compliance

A letter of credit is defined as “a definite undertaking ... by an issuer to a beneficiary at the request or for the account of an applicant or, in the case of a financial institution, to itself or for its own account, to honor a documentary presentation by payment or delivery of an item of value.” Iowa Code § 554.5102(l)(j) (2003). A properly established letter of credit “constitutes an enforceable obligation created by statute in the nature of a contract by the issuer ... in favor of the beneficiary.... The duty created in the letter of credit is wholly independent of the underlying contract between the issuer’s customer ... and the beneficiary.” Comdata Network, Inc. v. First Interstate Bank of Fort Dodge, 497 N.W.2d 807, 809 (Iowa 1993) (quoting Newvector Commc’ns, Inc. v. Union Bank, 663 F.Supp. 252, 254-55 (D.Utah 1987)). Determination of a bank’s duty of performance depends only upon “ ‘the presentation of conforming documents and not upon the factual performance or nonperformance by the parties to the underlying transaction.’ ” Id. (quoting Newvector, 663 F.Supp. at 255).

Our courts apply a rule of strict compliance to terms stipulated in letters of credit. Comdata Network, Inc., 497 N.W.2d at 809. The rule was first announced in First National Bank of Council Bluffs v. Rosebud Housing Authority, 291 N.W.2d 41, 45 (Iowa 1980). The court recognized “[t]he key to the commercial vitality and function of a letter of credit is that the issuing bank’s promise is independent of the underlying contracts, and the bank should not resort to them in interpreting a letter of credit.” First Nat’l Bank of Council Bluffs, 291 N.W.2d at 44. Rather, “[t]he respective parties are protected by careful description of the documents which will trigger payment.” Id. The court went on to explain the reason for a rule of strict compliance:

If courts deviate from the rule of strict compliance and insist in certain undefined situations that banks make payments notwithstanding the fact that the beneficiary failed to comply with the terms stipulated in the letter of credit, the certainty that makes this device so attractive and useful may well be undermined, with the result that banks may become reluctant to assume the additional risks of litigation.

Id. at 45 (quoting Insurance Co. of N. Am. v. Heritage Bank, N.A., 595 F.2d 171, 176 (3rd Cir.1979)). The rule has been applied in subsequent cases. See Comdata Network, Inc., 497 N.W.2d at 809-10 (holding that letter of credit could not be extended to cover obligations not specifically mentioned in the letter of credit); Atlas Mini Storage, Inc. v. First Interstate Bank of Des Moines, N.A., 426 N.W.2d 686, 688-89 (Iowa Ct.App.1988) (holding that temporary injunction was appropriate pending resolution of whether the documents presented with a demand for payment strictly complied with the documents required by the terms of the letter of credit).

The 1995 revisions to the Uniform Commercial Code (UCC), enacted in Iowa in 1996, codify the strict compliance standard. See 1996 Iowa Acts ch. 1026, § 7; Iowa Code § 554.5108 (2003). Iowa Code section 554.5108(1) provides:

[A]n issuer shall honor a presentation that, as determined by the standard practice referred to in subsection 5, appears on its face strictly to comply with the terms and conditions of the letter of credit.... [A]n issuer shall dishonor a presentation that does not appear so to comply.

Subsection 5 provides:

An issuer shall observe the standard practice of financial institutions that regularly issue letters of credit. Determination of the issuer’s observance of the standard of practice is a matter of interpretation for the court. The court shall offer the parties a reasonable opportunity to present evidence of the standard practice.

Iowa Code § 554.5108(5).

The parties differ as to whether a determination of “standard practice” is necessary in this case. Wells Fargo argues section 554.5108(5) does not permit consideration of extrinsic evidence of standard practice in this case, where the unambiguous language in the letter of credit required presentment of the original letter of credit. It contends the drafters of the Uniform Commercial Code, by referring to “standard practice,” intended to codify cases that required strict compliance with express conditions of a letter of credit but recognized that mere immaterial discrepancies, such as typographical errors, could not form the basis of dishonor. Therefore, Wells Fargo concludes, Plaintiffs’ failure to comply with the unambiguous requirement that the original letter of credit be presented justifies dishonor under the strict compliance standard.

In contrast, Plaintiffs argue Iowa Code section 554.5108(5) requires the district court to determine the standard of practice for honoring letters of credit prior to a determination of strict compliance pursuant to section 554.5108(1). Plaintiffs contend the district court properly considered the affidavit of John C. Bradley to determine the standard practice of financial institutions in the geographic area.

We think Wells Fargo has the better argument in this case. Central to the unique purpose of letters of credit is the “independence principle,” which requires the issuer to pay a beneficiary on proper demand regardless of a breach or default on the underlying contract. See 3 James J. White & Robert S. Summers, Uniform Commercial Code § 26-2, at 113 (4th ed. 1995) [hereinafter White & Summers]; see also First Nat’l Bank of Council Bluffs, 291 N.W.2d at 44.

The independence principle refines issuer’s duty: issuer must deal only in documents. The letter of credit must spell out what documents must be presented, what they must recite' and — in the future — what medium (written, electronic, otherwise). Events or circumstances outside the presented documents and the letter itself must not determine whether the issuer has a duty to pay in any given case.... Nor is the issuer bound to look beyond the four comers of presented documents for facts that might cure discrepancies, omissions, or inconsistencies in the papers.

3 White & Summers § 26-5, at 139 (emphasis added). Thus, “when a [letter of] credit’s terms are clear, a court should not construe them at all.” J.P. Morgan Trust Co., N.A. v. U.S. Bank, N.A., 381 F.Supp.2d 865, 872 (E.D.Wisc.2005) (citing John F. Dolan, The Law of Letters of Credit ¶ 4.08[4] (rev. ed. 2003)). “A court should engage in interpretation only if a credit is ambiguous, i.e., ‘when with equal plausibility [it] can be read more than one way.’ ” Id. (citing Dolan ¶ 4.08[4]; 3 White & Summers § 26-5b).

We recognize the revised UCC “specifically adopts the strict compliance standard as determined by the ‘standard practice.’ ” See 3 White & Summers § 26-7, at 159. However, “[b]y adopting standard practice as a way of measuring strict compliance,” the drafters indorsed only those cases in which minor typographical errors were overlooked by the court in applying the strict compliance rule. See, e.g., Tosco Corp. v. Federal Deposit Ins. Corp., 723 F.2d 1242, 1247-48 (6th Cir.1983) (concluding strict compliance rule did not warrant dishonor of draft where deviations— change of “L” in “Letter” to “1,” use of “No.” instead of “Number,” and addition of words “Clarksville, Tennessee” — were “insubstantial” and there was no possibility “that the bank could have reasonably been misled to its detriment”); New Braunfels Nat. Bank v. Odiorne, 780 S.W.2d 313 (Tex.Ct.App.1989) (concluding strict compliance did not warrant dishonor of draft when draft requested payment on letter of credit number “86-122-5” and letter of credit specified number “86-122-S”).

The Tosco Corporation and New Braun-fels cases are in stark contrast to cases applying the strict compliance rule to situations in which a letter of credit required presentation of an original document. In Vanden Brul v. MidAmerican Bank & Trust Company, 820 F.Supp. 1311 (D.Kan.1993), the letter of credit at issue required presentment of the original letter of credit and promissory note. Vanden Brul, 820 F.Supp. at 1312. The plaintiffs’ demand pursuant to the letter of credit included photocopies, not the originals. Id. An affidavit accompanying the draft stated the originals had been lost or destroyed and that neither document has been negotiated, gifted, transferred, pledged, or assigned by the plaintiffs. Id. The court held the lack of original promissory note and letter of credit made the demand for payment nonconforming and thus relieved the bank from its obligation to pay. Id. at 1313.

Similarly, the court in Bisker v. NationsBank, N.A., 686 A.2d 561 (D.C.CtApp.1996), held that the bank properly refused to honor a demand for payment by the beneficiary where the promissory note accompanying the demand was not the original, as required by the terms of the letter of credit. Bisker, 686 A.2d at 562, 567. The court noted, “ ‘One manifestation of the strict compliance rule is the longstanding practice among issuers to require original documents unless the letter of credit stipulates otherwise.’ ” Id. at 566 (quoting Western Int’l Forest Prods, v. Shinhan Bank, 860 F.Supp. 151, 154 (S.D.N.Y.1994)); see also Airlines Reporting Corp. v. Norwest Bank, N.A., 529 N.W.2d 449, 452 (Minn.Ct.App.1995) (holding that where “[s]trict compliance required ... that any drafts drawn under the letter of credit be accompanied by ‘this Letter of Credit,’ ” presentment of an altered photocopy did not strictly comply and bank properly refused to honor the demand for payment).

The courts in Vanden Brul, Bisker and Airlines Reporting Corp. did not look beyond the express terms of the letter of credit at issue in each case. We find nothing in the revised UCC or its comments that requires us to do any differently in the case before us, where the letter of credit’s terms were clear and unambiguous. The letter of credit required presentment of the original letter of credit to obtain payment. , Plaintiffs failed to present the original letter of credit, thereby failing to comply with the explicit provisions of the letter of credit. Therefore, Wells Fargo properly denied payment.

Because we hold that application of the strict compliance rule does not require us to look beyond the express terms of the letter of credit in this case, we conclude the district court erred in granting summary judgment to Plaintiffs. We reverse the district court’s decision and remand for entry of summary judgment in favor of Wells Fargo.

REVERSED AND REMANDED.

      . To the extent Plaintiffs’ brief contains facts that are not in the record on appeal, we will not consider such facts. See Alvarez v. IBP, Inc., 696 N.W.2d 1, 3 (Iowa 2005) ("This court will not consider facts for which there is no record support.”); see also Iowa R. App. P. 6.14(l)(d).

      . See Grunwald v. Quad City Quality Service, Inc., 662 N.W.2d 370 (Iowa Ct.App. 2003) (affirming in part, reversing in part, and remanding the case to district court for further rulings).

      . Alternatively, Plaintiffs requested ruling on a motion for adjudication of law points. We note that an adjudication of law points no longer exists under the Iowa Rules of Civil Procedure. See Iowa R. Civ. P. 1.454 (repealed effective August 1, 2002); Weber v. Warlike, 658 N.W.2d 90, 92 (Iowa 2003).

      . The UCC comments cite both Tosco and New Braunfels. See Iowa Code § 554.5108 UCC cmt. 1.


author: /s/Helen M. Meyer Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Charles L. HAWKINS.
    No. A06-398.
    Supreme Court of Minnesota.
    Nov. 20, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition and a supplementary petition for disciplinary action alleging that respondent Charles L. Hawkins committed professional misconduct warranting public discipline, namely, a pattern of untimely appellate filings resulting in respondent’s suspension by the Eighth Circuit Court of Appeals for six months, and alleging that in his practice before the Minnesota Court of Appeals, respondent engaged in a similar pattern of late filings in violation of Minn. R. Prof. Conduct 1.3, 3.4(c), and 8.4(d).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 60-day suspension from the practice of law. The stipulation further recommends that the suspension be stayed and that respondent be publicly reprimanded and placed on probation for two years subject to the following conditions:

(a) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of two attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date of filing of this order. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director shall seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (b) below. Respondent shall make active client files available to the Director upon request.
(b) Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active appellate client files by the first day of each month during the probation. With respect to each active appellate file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(c) Respondent shall initiate and maintain office procedures that ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts and other persons interested in appellate matters that respondent is handling and that will ensure that respondent regularly reviews each and every appellate file and completes legal matters on a timely basis.
(d) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(e) Respondent shall cooperate fully with the Director’s office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(f) Should respondent fail to comply with these conditions, the Director may submit a motion to this court seeking to impose the balance of respondent’s suspension. Respondent shall be entitled to notice of the Director’s motion and an opportunity to be heard.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Charles L. Hawkins is hereby suspended from the practice of law for a period of 60 days, such suspension being stayed subject to the conditions set forth above. Respondent is hereby publicly reprimanded and placed on supervised probation for a period of two years subject to the conditions set forth above. Respondent shall pay the sum of $900 in costs pursuant to Rule 24(a), RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


text:
    In re Petition for REINSTATEMENT OF Yvonne B. MOORE, a Minnesota Attorney, Registration No. 74895.
    No. A06-844.
    Supreme Court of Minnesota.
    Dec. 20, 2006.
   ORDER

On January 5, 2006, this court suspended petitioner from the practice of law for a period of 90 days and required her to petition for reinstatement under Rule 18, Rules on Lawyers Professional Responsibility (RLPR). In re Moore, 707 N.W.2d 390 (Minn.2006). Petitioner petitioned for reinstatement and has entered into a stipulation with the Director under which the parties agree that petitioner be reinstated to the practice of law and placed on permanent retired status. Petitioner agrees not to seek reinstatement to active status in this state or admission to the bar in any other jurisdiction. The Director and petitioner waive the hearing on reinstatement under Rule 18, RLPR.

Based on all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that effective immediately petitioner Yvonne B. Moore is reinstated to the practice of law in the State of Minnesota and is hereby placed on permanent retired status. Petitioner shall not practice law in the State of Minnesota. Petitioner shall not apply for reinstatement to active status in this state and shall not apply for admission to the bar in any other jurisdiction.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: /s/ G. Barry Anderson Associate Justice

text:
    Kris HAHN, Respondent, v. GRACO, INC., Self-Insured/Adm’d by ASU Risk Mgmt. Services, Relators.
    No. A06-1737.
    Supreme Court of Minnesota.
    Dec. 28, 2006.
    James S. Pikala, Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pika-la, P.A., Minneapolis, MN, for Appellant.
    Lawrence C. Miller, Miller & Carlson, P.L.L.P., Minneapolis, MN, for Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed August 17, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that, “[sjummary affirmances have no precedential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ G. Barry Anderson Associate Justice


author: KLAPHAKE, Judge.

text:
    David GOEMAN, et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Respondent.
    No. A06-425.
    Court of Appeals of Minnesota.
    Dec. 19, 2006.

      Robert W. Kettering, Jr., Douglas D. McGhee, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for appellants.
    Thomas D. McCormick, McCormick Law Office, P.A., Minneapolis, MN, for respondent.

      Considered and decided by MINGE, Presiding Judge, LANSING, Judge, and KLAPHAKE, Judge.
   OPINION

KLAPHAKE, Judge.

Appellants David and Charlotte Goeman and Trade Lake Mutual Insurance Company (Trade Lake) challenge the grant of summary judgment to respondent Allstate Insurance Company (Allstate), determining that under the “closest to the risk” doctrine, Trade Lake was primarily liable for injuries sustained by a child guest who was bitten by the Goemans’ dog while at their cabin. On appeal, Trade Lake argues that because both policies were equally close to the risk, the policies provide concurrent coverage. We agree, and reverse and remand. We further reject Allstate’s claim that Trade Lake’s reply brief inappropriately includes “new matters” and deny Allstate’s motion to strike.

FACTS

In June 1998, an eight-year-old child was bitten by the Goemans’ dog while in the living room of their cabin. This child was a guest at the cabin, which is located in Frederic, Wisconsin.

At the time of the incident, the Goemans also owned a primary residence in Rich-field, Minnesota. The Goemans insured their cabin through Trade Lake and their primary residence through Allstate. Both homeowners’ policies provided the Goe-mans with $100,000 in personal liability coverage; the Trade Lake policy, however, limited its coverage to occurrences within the state of Wisconsin.

In October 2001, the father of the child who was bitten sued the Goemans. Trade Lake assumed defense of the lawsuit. In October 2002, a jury awarded the child $34,209 in damages, and Trade Lake paid this amount, as well as an additional $2,807.84 in taxable costs and $19,055.73 in legal fees and costs. In total, Trade Lake paid out $54,272.07 on the claim.

Trade Lake and the Goemans thereafter brought this declaratory judgment action against Allstate, seeking a declaration that Allstate pay half of the damages or $27,136.04. On cross motions for summary judgment, the district court determined that the policies’ excess coverage clauses were in conflict and that under the “closest to the risk” analysis, Trade Lake was primarily liable. The court further concluded that because the amount in controversy, $54,272.07, was “well under Trade Lake’s policy limit of $100,000,” there was “no excess for Allstate to pay in this case.”

On appeal, Trade Lake argues that because the two policies are equally close to the risk, they provide concurrent personal liability coverage.

ISSUES

1. Should this court grant Allstate’s motion to strike Trade Lake’s reply brief?

2. Did the district court err in determining that the Trade Lake policy was “closest to the risk” and was therefore primarily liable?

ANALYSIS

I.

Allstate moved to strike Trade Lake’s reply brief, claiming that the reply brief is not confined to new matters raised in respondent’s brief and thus violates Minn. R. Civ.App. P. 128.02, subd. 3 (stating that “reply brief must be confined to new matter[s] raised in the brief of the respondent”). By order dated June 21, 2006, this court deferred Allstate’s motion to this panel for a ruling.

Allstate insists that the “geographic scope factor” discussed by Trade Lake in its reply brief is simply a re-argument of the same issue raised by Trade Lake in its initial brief. A reply brief should be limited to a “concise answer to new points” made by a respondent; it should not include a “repetition of arguments previously made [or] new matter not in response to points made by [the] respondent.” Albert Lea Ice & Fuel Co. v. United States Fire Ins. Co., 239 Minn. 198, 205, 58 N.W.2d 614, 619 (1953). To the extent that Trade Lake’s reply brief offers a rebuttal of the arguments raised by Allstate, however, we do not believe that it violates rule 128.02. See 3 Eric J. Magnuson & David F. Herr, Minnesota Practice § 128.8, at 606 (2006) (stating that reply briefs are “liberally construed to allow the appellant to respond to the arguments advanced by the respondent, even if they are not technically ‘new matter’ ”). We therefore deny Allstate’s motion to strike.

II.

On appeal from a grant of summary judgment, this court must determine whether genuine issues of material fact remain for trial and whether the district court erred in applying the law. See State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990); Minn. R. Civ. P. 56.03. Where, as here, the facts are undisputed, an appellate court “need only review the [district] court’s application of the law in interpreting the language of the two insurance contracts.” Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82, 85 (Minn.1988). The interpretation of an insurance contract raises a question of law that is reviewed de novo. Garrick v. Northland Ins. Co., 469 N.W.2d 709, 711 (Minn.1991).

The parties agree that both of the Goe-mans’ policies had “other insurance” clauses that provided excess coverage and that those clauses conflicted. The parties further agree that when faced with this type of conflicting coverage, Minnesota courts apply the “closest to the risk” analysis, which is described as follows:

The nub of the Minnesota doctrine is that coverages of a given risk shall be “stacked” for payment in the order of their closeness to the risk. That is, the insurer whose coverage was effected for the primary purpose of insuring that risk will be liable first for payment, and the insurer whose coverage of the risk was the most incidental to the basic purpose of its insuring intent will be liable last. If two coverages contemplate the risk equally, then the two companies providing those coverages will prorate the liability between themselves on the basis of their respective limits of liability.

Integrity Mut. Ins. Co. v. State Auto. & Cas. Underwriters Ins. Co., 307 Minn. 173, 175-76, 239 N.W.2d 445, 447 (1976).

The following three-part test is used to determine which policy is closest to the risk:

(1) Which policy specifically described the accident-causing instrumentality?
(2) Which premium is reflective of the greater contemplated exposure?
(3) Does one policy contemplate the risk and use of the accident-causing instrumentality with greater specificity than the other policy that is, is coverage of the risk primary in one policy and incidental to the other?

Auto Owners Ins. v. Northstar Mut. Ins., 281 N.W.2d 700, 704 (Minn.1979); see also III. Farmers Ins. v. Depositors Ins. Co., 480 N.W.2d 657, 660-61 (Minn.App.1992).

With respect to the first factor, the district court here concluded that “[b]oth policies provided broad personal liability coverage for a wide range of occurrences” and that neither policy more specifically described the accident-causing instrumentality, which was the Goemans’ dog. The parties both agree with the district court’s analysis on this first factor: neither policy specifically addressed the risk of an injury caused by a pet. Rather, the risk of a dog bite was merely one of many potential personal liabilities for a homeowner. Cf. Nat’l Union Fire Ins. Co. v. Republic Underwriters Ins. Co., 429 N.W.2d 695, 697 (Minn.App.1988) (in coverage dispute between day-care provider liability insurer and homeowners’ insurer, day-care insurer closer to the risk partly because its policy specifically contemplated injury resulting from careless actions of young children in day-care setting, while homeowners’ policy did not).

With respect to the second factor regarding which premium reflects the risk of exposure, the district court concluded:

Trade Lake charged a premium of $514 per year for $100,000 of comprehensive personal liability coverage for the Goemans’ Frederic, Wisconsin property. It is unclear to the Court the amount that Allstate charged for a yearly ... premium for coverage for the Goemans’ Richfield, Minnesota property. However, [Allstate has] stipulated that [it] provided the same $100,000 in coverage that Trade Lake [did]. Again, the Court cannot answer the question as to primary and secondary liability using this prong of the “closeness to the risk” analysis.

Both parties also agree with the district court’s analysis on this second factor: both insurers provided comprehensive personal liability coverage for the Goemans as part of their homeowners’ insurance policy and neither contemplated greater exposure by an increased premium.

With respect to the third factor regarding whether one policy contemplates the risk with greater specificity, the district court determined that the Trade Lake policy more clearly contemplated the risk because it “more accurately cover[ed] the location where this tort occurred.” In particular, the district court reasoned:

The Trade Lake policy does include geographic limitations for their policy. The “Seasonal Residence Endorsement Non-Wisconsin Resident” enclosure to the policy indicates that coverage “applies only to losses or occurrences that occur within the boundaries of the State of Wisconsin.” The Trade Lake policy was specifically for the Goemans’ Wisconsin property. Trade Lake’s policy specifically describes the locale of the Goemans’ cabin as being the location from where the insurance is based. It further explains that the coverage under this policy is only for incidents occurring within the State of Wisconsin. While both policies cover personal bodily injury, including the dog bite incident, it seems that the Trade Lake policy more accurately covers the location where this tort occurred. If this dog bite had occurred at the Goemans’ Richfield, Minnesota property, it is clear that Allstate would be exclusively liable.

We agree with Trade Lake that the district court erred in considering the “geographical scope of coverage” as the determinative factor here.

Allstate asserts that the Trade Lake policy was closest to the risk because its coverage was specifically limited to losses or occurrences in Wisconsin, which is where the dog bite occurred. While such a geographic restriction is not common, Allstate insists that an insurer with such a provision in its policy necessarily “accepts the primacy of its coverage” when the occurrence falls within that geographic restriction. We disagree and point out that the Allstate policy covered the Goemans in all 50 states, thus indicating that Allstate contemplated greater risks than Trade Lake, which sought to reduce its coverage by restricting liability to occurrences in Wisconsin.

We therefore conclude that both policies equally contemplated the risk of a dog bite injury and neither is closest to the risk. The location of the injury was merely fortuitous, and there is no language in either policy linking coverage for an injury caused by a pet to any particular place. While some types of risks may be dwelling specific, such as personal liability arising out of an accident in a swimming pool at a residence, the “accident-causing instrumentality” here was mobile and not limited to any particular residence. Thus, because both policies equally contemplate the risk of a dog bite injury, whether at the Wisconsin cabin or elsewhere, the district court erred in determining that the Trade Lake policy is closest to the risk.

DECISION

Because the district court erred in determining that the Trade Lake policy was closest to the risk and primarily liable, we reverse the grant of summary judgment to Allstate and remand with directions to enter judgment for Trade Lake on its cross motion for summary judgment.

Reversed and remanded; motion denied.

      . Minnesota courts sometimes apply the broader "total policy insuring intent" test when "other insurance" or "excess insurance” clauses conflict. See Interstate Fire & Cas. Co. v. Auto-Owners Ins. Co., 433 N.W.2d 82 (Minn.1988). The analyses are similar under the two tests and often lead to the same result. See U.S. Fidelity & Guarantee Ins. Co. v. Commercial Union Midwest Ins. Co., 430 F.3d 929, 934 (8th Cir.2005) ("Minnesota courts apply two different tests in apportioning liability between insurers when the other insurance clauses conflict: the 'total policy insuring intent' analysis or the 'closer to the risk' analysis. The ‘total policy insuring intent' analysis is a broader test and 'examines the primary policy risks upon which each policy's premiums were based and the primary function of each policy.' ”).