author: NEUMANN, Justice.

text:
    2003 ND 201
    Michael O. DuPAUL, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20030173.
    Supreme Court of North Dakota.
    Dec. 23, 2003.
    Rehearing Denied Feb. 2, 2004.

      Michael O. DuPaul, pro se, Minot, petitioner and appellant.
    Andrew Moraghan, Assistant Attorney General, Bismarck, for respondent and ap-pellee.
   NEUMANN, Justice.

[¶ 1] Michael O. DuPaul appeals the district court’s dismissal of his administrative appeal of a Department of Transportation order. The district court found it lacked subject-matter jurisdiction because DuPaul failed to properly perfect his appeal under the statutory requirements of N.D.C.C. § 28-32-42. We affirm.

[¶ 2] DuPaul was arrested for driving under the influence on August 3, 2002. DuPaul’s blood-alcohol content was above the legal limit. After the Department of Transportation (“Department”) notified DuPaul it intended to suspend his driving privileges, he requested an administrative hearing. At the August 29, 2002, hearing, DuPaul’s driving privileges were suspended for one year. DuPaul responded to the Department regarding the suspension in letters that were received by the Department on September 5, 2002, and September 12, 2002. In his September 12, 2002, letter, DuPaul requested “first of all a reopening of the admin[istrative] hearing ... as a second choice an appeal to District Court or whatever.” The hearing officer then informed DuPaul that the Department concluded he had intended to request reconsideration. The Department also informed DuPaul of the proper procedure for reconsideration. DuPaul complied with the proper procedure for reconsideration.

[¶ 3] A hearing officer denied the petition for reconsideration on October 8, 2002. On October 30, 2002, DuPaul mailed a letter to the Ward County Clerk of Court. He appears to have requested the name of the judge assigned to his appeal, and he filed an apparent motion for court-appointed counsel and a stay of the suspension of his driving privileges. DuPaul asserted he filed an appeal, by United States mail, on August 31, 2002. DuPaul sent several more letters and motions to the Clerk of Court, often requesting information about the status of his administrative appeal. On December 13, 2002, the district court waived DuPaul’s filing fees for the appeal and sent a copy of the order to the Department. The Department alleges that order was the first document related to DuPaul’s administrative matter it had received since the October 8, 2002, decision. DuPaul sent additional motions and letters to the district court. The Department asserts it did not receive those documents. DuPaul submitted a motion, letter, and brief to the district court and the Department on February 19, 2003, requesting relief because the Department had not responded to Du-Paul’s previous motions. The Department then moved to dismiss DuPaul’s appeal due to the district court’s lack of subject-matter jurisdiction. DuPaul’s appeal was dismissed April 14, 2003. DuPaul appeals that dismissal to this Court.

[If 4] DuPaul argues his letters, dated September 5, 2002, and September 12, 2002, properly perfected his appeal because he requested “first of all a reopening of the administrative] hearing ... as a second choice an appeal to the District Court or whatever.” Essentially, DuPaul argues he is permitted to simultaneously file an appeal with the district court and file a petition for reconsideration of the Department’s administrative ruling. We disagree.

[¶ 5] A district court exercises appellate jurisdiction conferred upon it by statute over appeals from administrative agency decisions. Wagner v. North Dakota Bd. of Barber Examiners, 186 N.W.2d 570, 572 (N.D.1971). The appellant must meet the statutory requirements for perfecting the appeal before the district court has subject-matter jurisdiction over the appeal. Pederson v. N.D. Workers Comp. Bureau, 534 N.W.2d 809, 810 (N.D.1995). A district court has subject-matter jurisdiction only if, “ ‘the particular issue to be determined [has been] properly brought before the court in the particular proceeding.’ ” Trottier v. Bird, 2001 ND 177, ¶ 6, 635 N.W.2d 157 (quoting Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 11, 580 N.W.2d 583). If a district court does not have subject-matter jurisdiction, it is compelled to dismiss the action. N.D.R.Civ.P. 12(h)(3).

[¶ 6] A motorist may challenge an administrative ruling in one of two ways. The decision may be immediately appealed to a district court, under N.D.C.C. § 39-20-06. In the alternative, the motorist may file a petition for reconsideration with the Department under N.D.C.C. § 28-32-40(1). If the motorist files a petition for reconsideration, and such reconsideration is denied, the motorist may then appeal that ruling to the district court within thirty days after receiving notice of denial, under N.D.C.C. § 28-32-42(1),

[¶ 7] After the Department received DuPaul’s September 12, 2002, letter, the hearing officer sent notification to DuPaul informing him the Department had concluded DuPaul intended to request reconsideration under N.D.C.C. § 28-32-40(1). The hearing officer’s notification also provided instructions regarding the reconsideration process. DuPaul did not correct the Department upon receipt of the notification of its interpretation of his request. DuPaul then participated in the reconsideration process. Upon receipt of the order denying reconsideration, DuPaul had thirty days to appeal the decision to the district court. See N.D.C.C. § 28-32-42(1). DuPaul failed to do so.

[¶ 8] While DuPaul did contact the district court on October 30, 2002, this correspondence was not served on the Department. Even if DuPaul’s October 30, 2002, correspondence could be considered notice of his appeal to the district court, the Department must also be given notice of such appeal before it is perfected. See N.D.C.C. § 28-32-42(4).

[¶ 9] DuPaul’s September 12, 2002, letter does not appear to request both reconsideration of the hearing officer’s decision and an appeal to the district court. In fact, DuPaul requested an appeal “as a second choice” to reconsideration. DuPaul then continued with the reconsideration process after receiving the Department’s clarifying letter. Even if DuPaul could successfully argue he requested both reconsideration and an appeal in his one document, there is nothing within our statutory scheme allowing a motorist to simultaneously request reconsideration and appeal the decision to the district court. There is also no prior case law indicating this type of action properly perfects an appeal to the district court.

[¶ 10] The district court properly dismissed DuPaul’s appeal for lack of subject-matter jurisdiction. We have considered the other issues DuPaul raised on appeal and find them without merit. Accordingly, we affirm.

[¶ 11] GERALD W. VANDE WALLE, C.J., GORDON O. HOBERG, S.J., MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ., concur.

[¶ 12] The Honorable GORDON O. HOBERG, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.

      . "[A] dismissal for lack of subject matter jurisdiction under Rule 12(h)(3) is not an adjudication on the merits of the cause of action but only a determination of a court's jurisdiction to hear and decide the dispute. See N.D.R.Civ.P. 41(b).” Trottier v. Bird, 2001 ND 177, ¶ 6, n. 1, 635 N.W.2d 157.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2003 SD 140
    STATE of South Dakota, Plaintiff and Appellee, v. Michael J. NELSON, Defendant and Appellant.
    No. 22818.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Dec. 3, 2003.
    Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Jeremiah J. Davis, Office of the Public Defender for Pennington County, Rapid City, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This appeal involves the amount of restitution the trial court ordered as part of Michael Nelson’s sentence. The State concedes that the trial court erred in its calculation of restitution and that the case should be remanded for the trial court to correct the amount. There is no disagreement between the parties that the correct amount of restitution should be $7,500.

Facts

[¶ 2.] The State’s initial complaint alleged Nelson had committed six counts of forgery. At the preliminary hearing, the court dismissed all but Counts I and II. A jury found Nelson guilty of both counts. Count I pertained to check number 63165, which was presented for payment but never cashed, resulting in zero loss and no restitution. Count II pertained to check number 63153, which was presented for payment in the amount of $7,500 and honored by Rushmore State Bank. The trial court entered an initial judgment ordering Nelson to pay $7,500 in restitution for check number 63153. This was the correct amount. The trial court, however, entered an Amended Judgment for Count II, increasing the $7,500 to $7,980. The $480 increase was the sum of the checks numbered 63123 and 63126 alleged in Counts III and IV, which were dismissed at the preliminary hearing.

[¶ 3.] Nelson filed a Motion to Reconsider Restitution. At the motion hearing, Nelson pointed out that he had not been tried on Counts III or IV nor had he pled guilty to Counts III or IV and, consequently, should not be ordered to pay restitution for checks alleged in Counts III and IV. The trial judge denied the motion stating that he would order restitution for the $480 because the testimony at trial convinced him that Nelson owed that amount for the cheeks alleged in Counts III and IV. The trial judge determined that he “would consider it the same as [he] would on a civil case where monies are being requested based on the testimony.”

ISSUE

Whether the trial court erred by including as part of the sentence an amount greater than the amount for which the defendant was charged and found guilty.

DECISION

[¶ 4.] Nelson was found guilty of two Counts of forgery. All other Counts were dismissed prior to trial. Nelson did not admit committing other forgeries. SDCL 23A-28-1 states, “[i]t is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator’s criminal activities.” Criminal activities “includes any crime for which there is a plea of guilty or verdict of guilty upon which a judgment of conviction may be rendered and any other crime committed ... which is admitted by the defendant, whether or not prosecuted.” SDCL 23A-28-2(2). Nelson did not plead guilty nor were there guilty verdicts in regard to the two checks 63123 and 63126 in the amount of $240 each. Further, Nelson did not admit that he committed these forgeries. Accordingly, the trial court erred in amending its restitution order to include the two checks totaling $480.

[¶ 5.] We note that “[w]hile a trial court has broad discretion in sentencing, a sentence must be within the limits outlined by statute.” State v. Davis, 458 N.W.2d 812, 813 (S.D.1990). The amended restitution order requiring Nelson to pay the additional $480 violates SDCL 23A-28-1. The matter is reversed and remanded.

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


author: PER CURIAM.

text:
    2003 SD 139
    STATE of South Dakota, Plaintiff and Appellee, v. Tancrede HAMEL, Defendant and Appellant.
    No. 22753.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 17, 2003.
    Decided Dec. 3, 2003.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Bryan T. Andersen, Pennington County Public Defender, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Tancrede Hamel appeals his sentences for second degree rape, aggravated assault and criminal pedophilia. We affirm.

FACTS

[¶ 2.] This appeal arises out of Hamel’s rape of his twenty-five-year-old girlfriend, I.M. (mother), and her eleven-year-old daughter, R.M. Hamel, age twenty-seven, lived with mother and several of her minor children in Rapid City. On the night of June 21-22, 2002, Hamel and mother were in bed watching a pornographic movie. At approximately 3:00 a.m., Hamel told mother that he wanted to have sex. Mother declined because Hamel had been drinking, but Hamel persisted. Hamel decided that he wanted to have anal sex with mother because she was menstruating. When mother refused, Hamel became extremely upset. He grabbed mother, turned her over, pulled down her shorts and underwear, smeared himself with Vaseline and proceeded to have forced anal sex with mother despite her protests.

[¶ 3.] As Hamel was raping mother, he told her that he wanted to “fuck” R.M., mother’s eleven year old daughter. Mother became extremely upset and told Hamel “no.” Hamel then produced a knife, held it to mother’s back and told her “I will kill you and have sex with her anyway.” As mother continued her protests, Hamel grabbed her hair, yanked her head back and repeated his threat to kill her if she did not get R.M. Eventually, Hamel threatened to hurt or kill mother’s whole family if she did not get R.M.

[¶ 4.] Fearing for her life and the life of her children, mother went to the room where the children were sleeping, woke up R.M. and had the child come back to her room and lay on the bed. After mother sat down on the bed next to R.M., Hamel instructed her to take off R.M.’s pants and underwear. Mother refused, but Hamel prodded her with his knife and threatened to hurt her. Hamel told mother that if she did not remove R.M.’s clothing he would and that he would hurt the child and mother. Mother then told R.M. to take her pants off, but the child refused. As mother began to pull R.M.’s pants down herself, Hamel leaned over and ripped them off. Hamel told R.M. to lay there and that if she screamed he would kill mother. Ha-mel also told mother that if she got up and went anywhere he would kill the child. Hamel then wedged a pair of scissors in the door jam of the bedroom door as a way of locking it and to keep mother from leaving. After sealing the door, Hamel smeared himself with Vaseline and climbed on top of R.M. repeating his threats to stab and kill her and mother if R.M. screamed. Despite R.M.’s pleas for him to stop and protests that it hurt, Hamel penetrated R.M. both vaginally and anally causing the child to bleed. Mother could only cry and hold R.M.’s hand as she felt helpless.

[¶ 5.] When Hamel finished with R.M., he told her to go take a bath. Before the child got up from the bed, Hamel asked, “you want me to keep fucking you? Want me to fuck you or do you want me to do your mom in the ass while you watch?” R.M. looked at mother who gave an affirmative indication so that Hamel would stop hurting the child. R.M. then said, “yes” and Hamel again told R.M. to go take a bath. As R.M. was leaving the room, Ha-mel again began to rape mother, penetrating her both vaginally and anally.

[¶ 6.] At some point later in the night, Hamel fell asleep on the living room couch and mother and R.M, were able to flee the residence and call law enforcement from a nearby service station. Officers described mother as crying hysterically when they arrived on the scene. Hamel was taken into custody and eventually indicted for: one count of second degree rape of mother; one count of aggravated assault of mother; one of count of criminal pedophilia relating to R.M.; and, one count of aggravated assault of R.M. A part two information was also filed alleging Hamel had a prior felony conviction in the U.S. District Court for South Dakota for transporting a minor with intent to commit sexual abuse.

[¶ 7.] A plea bargain was struck and Hamel pled guilty to the rape and assault charges relating to mother and to the criminal pedophilia charge relating to R.M. in exchange for the dismissal of the assault charge relating to R.M. and the dismissal of the part two information. The trial court later sentenced Hamel to life without parole for criminal pedophilia, a consecutive twenty-five years in the penitentiary for second degree rape and a consecutive fifteen years for aggravated assault. Ha-mel appeals.

ISSUE

[¶ 8.] Do Hamel’s sentences constitute cruel and unusual punishment?

[¶ 9.] Hamel argues that his life sentence for criminal pedophilia plus consecutive twenty-fíve and fifteen year sentences for rape and aggravated assault constitute cruel and unusual punishment in violation of the Eighth Amendment. Evaluation of cruel and unusual punishment challenges begins with an assessment of the proportionality of the sentence to the crime. State v. Pugh, 2002 SD 16, ¶ 16, 640 N.W.2d 79, 84. This Court resorts to an intra-jurisdictional and inter-jurisdictional assessment of the proportionality of a sentence only if a threshold comparison of the crime committed and the sentence imposed leads to an inference of “gross disproportionality.” Id. In this inquiry, this Court considers the conduct involved and any relevant past conduct with utmost deference to the legislature and the sentencing court. Id. at ¶ 19, p. 85. In addition:

[This Court takes] “an extremely deferential review of sentencing — generally, a sentence within the statutory maximum will not be disturbed on appeal.” [This Court] will not “engage in appellate re-sentencing, or [] ‘micromanage the administration of criminal justice’ in South Dakota, even when individual trial judges impose widely different punishments for the same offense.”

State v. Stahl, 2000 SD 154, ¶ 5, 619 N.W.2d 870-871, 872 (citations omitted).

[¶ 10.] Hamel is now twenty-nine years old. He has a record of violent behavior with prior arrests and/or convictions for incidents of domestic violence, assault and resisting arrest. He has a particularly disturbing history of violent sex offenses with women and young girls that includes incidents of drunken rage, domestic violence, rape, assault and attempted rape. In July 2000, he was arrested and convicted for assault after administering a beating to mother for refusing to perform oral sex on him. Hamel beat mother so severely that she passed out at least twice as a result of his hitting her, kicking her and slamming her head against the couch and floor. In July 2001, Hamel was again arrested after a drunken attack on mother’s sister in which he grabbed her by the neck, threw her against the wall, grabbed her upper leg and lifted it up telling her that she was “his.” Hamel’s record is not limited to abuse of adults. In 1996, he was convicted in the U.S. District Court for the District of South Dakota for transportation of a minor with intent to commit sexual abuse. The conviction was obtained after Hamel, serving as a volunteer reserve police officer in Pine Ridge, picked up a fourteen year old girl and transported her to an isolated area near White Clay, Nebraska where he raped her on the hood of his car before returning her home.

[¶ 11.] In the present case, Hamel was charged with violent offenses which, because of his habitual offender status, carried maximum possible penalties of one mandatory life term in the penitentiary plus a second life term plus fifty years and maximum fines of $75,000. The charges alone were, in a manner of speaking, a bargain as, given the number of assaultive acts and incidents of penetration committed by Hamel, it certainly would have been possible to charge him with additional counts of assault and rape. The trial court even noted during sentencing that Hamel was not charged with all of the crimes he could have been. Plea bargaining and dismissal of the habitual offender information further worked to Hamel’s advantage. He gained the ability to argue for something less than a single life term plus forty years in the penitentiary with maximum fines of $65,000. Out of the maximum, he received a sentence of life plus forty years. Given the heinous nature of his crime of raping a mother and her daughter at knifepoint in the presence of one another and Hamel’s violent history, his propensity for violence and the dim prospects for rehabilitation identified in his psychological evaluation, it cannot be said that this sentence was grossly disproportionate. As the trial court ably articulated during sentencing, it had to protect society from a risk that could not be altered. Its sentence accomplished that.

[¶ 12.] Affirmed.

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

      . Hamel's psychological evaluation provided in pertinent part that: he, "is likely to continue to represent a risk of harm to others for the foreseeable future;" that he, "presents as a very disturbed man who has sexually deviant proclivities, narcissistic and antisocial personality traits, and alcohol dependence;” and that he, "is currently estimated to represent a high risk [to reoffend] and should be allowed no unsupervised contact with anyone under the age of 18 years.”


author: ZINTER, Justice.

text:
    2003 SD 141
    Larry WELCH, as the special administrator of the Estate of Caz “Larry” Welch, deceased, Plaintiff and Appellant, v. Allen HAASE and Zenda Haase, Defendants and Appellees, Darby Klein and Earla Klein, Defendants and Appellees.
    No. 22684.
    Supreme Court of South Dakota.
    Argued Oct. 7, 2003.
    Decided Dec. 3, 2003.

      George F. Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, SD, for plaintiff and appellant.
    John S. Theeler, John F. Cogley of Morgan, Theeler, 'Wheeler, Cogley & Petersen, Mitchell, SD, for defendants and appellees Haase.
   ZINTER, Justice.

[¶ 1.] Larry Welch (Welch), special administrator of the Estate of Caz Welch (decedent), initiated wrongful death and survival actions following Caz’s death in a single car auto accident. The actions were brought against the driver of the vehicle (Darby Klein), the driver’s mother (Earla Klein), and the two landowners (Allen and Zenda Haase) who hosted a party immediately preceding the accident. Darby and Earla Klein did not retain counsel, did not answer the complaint, and proceeded to trial in default only to “find out how much [they] owe.” Haases defended on a number of grounds including a lack of landowner liability, a lack of proximate cause, insufficient evidence of damages, assumption of the risk, and contributory negligence. The jury returned a general verdict in favor of all four defendants. Welch appeals the denial of his subsequent motion for judgment notwithstanding the verdict or new trial. Welch argues that the jury verdict was unfair and the subject of passion and prejudice. He also argues that the trial court erroneously instructed on the law governing landowner liability and the furnishing of alcoholic beverages by social hosts. We affirm the trial court’s denial of Welch’s motion relating to the Haases. With respect to the Kleins, we reverse and remand for new trial on both the wrongful death and the survival actions.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On May 21, 2000, the graduating class of Winner High School had a graduation party. The students had organized the party throughout the school year. They collected money to buy several kegs of beer for the party, and they arranged for someone over twenty-one to purchase it. By graduation, the location of the party was the only detail that had not been determined. Some students approached Allen and Zenda Haase to host the party. Haases’ oldest son was in the graduating class, and Haases were asked if the party could be held at their farm, which was located forty miles from Winner. Haases agreed.

[¶ 3.] A large number of students attended the party, including Darby Klein and Caz Welch. Parents and other adults also attended. The adults were at the party to help enforce an informal set of “rules” that had developed from prior Winner graduation parties. The “rules” were purportedly designed to prevent alcohol-related driving accidents. One of the “rules” required the collection of all car keys in buckets as the students arrived. Adults were also posted at a gate put up by students to guard the farm’s exit. Drivers wishing to leave the party were required to call a parent before leaving.

[¶ 4.] The Haases did not provide any of the alcohol consumed by the students at the party. They did, however, stay at their farm during the party. They also helped the other “chaperones” enforce the “rules.” Consequently, Haases helped collect the students’ keys and helped supervise the exit gate.

[¶ 5.] One of the other parents at the party was Ronda Godel. She was Caz Welch’s mother. She also assisted with collecting the students’ keys. However, she left early in the morning before the party was over. She did not leave any instructions with the Haases regarding Caz and whether he had her permission to leave.

[¶ 6.] At the end of the evening, the bucket of keys remained inside the Haas-es’ home. When students got ready to leave the following morning, they were required to go into the house to get their keys. The students were also supposed to call a parent to get permission to drive home. Many students called their parents from the phone at the Haase home. Other students used cell phones to call their parents.

[¶ 7.] As they were leaving, the students had to drive through the gate that had been set up the previous evening. Zenda Haase and another adult were at the gate that morning. As students reached the gate, Zenda asked them to call their parents if they had not already done so from the house phone. One of ■ the drivers Zenda encountered at the gate was Darby Klein. He was driving a van with five passengers, including Caz Welch.

[¶ 8.] Zenda asked Darby to call his mother to ask if it was “okay” to drive home and to tell her who he had with him in his van. Darby spoke to his mother, and allegedly got permission to drive home. Zenda knew that Darby had been at the party all night and that he had been drinking, but she testified that she did not see evidence that he was under the influence. Zenda did not take any other steps to ensure that Darby could safely drive, and she allowed him leave the party.

[¶ 9.] The passengers in Darby’s van were all good friends. They had “partied” in a similar manner many times in high school. In fact, they had been drinking at and driving home from parties the entire week of graduation. One of the passengers, Summer Cousins, testified that on this day, she and the other passengers in the van were all aware that Darby had been drinking at the party. However, they all got in the van anyway because it was not the first time they had been with Darby when he was driving after he had been drinking.

[¶ 10.] After leaving the Haases’, Darby drove for several miles. During the trip, Caz moved from the back of the van to the front to change the radio station. At the same time, someone in the back of the van asked for a cell phone. Darby turned back to give the phone to the passenger and lost control of the van. The van entered a ditch, hit an approach, rolled, and landed upside down. Darby described the accident at trial:

I guess, what I remember is, I was just driving down the road. Caz came, came up and he was fiddling with the radio, and then when he started going back, I looked back, and when I looked forward, there was the approach, and then that’s all I remember. Because, I looked back and looked forward, and by that time we were in the ditch and already on the approach. And I — I remember trying to hit the brakes, but there was — I didn’t that’s all I remember about it. That I tried to stop and I couldn’t.

[¶ 11.] As a result of the accident, Caz was pinned between the seats and the roof of the van, which had been pushed together by the accident. He was not able to move. Summer Cousins, who was in the van with Caz, testified that after the accident, she and Caz were trapped in the van. She saw that Caz was trapped by the seats, and she tried to push the seats to get them to move. She also testified that Caz was struggling to breathe.

[¶ 12.] Another vehicle leaving the party arrived just after the accident. One of the passengers in that car, Dana Fisher, testified that the boys she was riding with “got out of our car, and went down to help, all they could. They ended up having to punch a window, break a window open to get Summer out. They tried all they could to help Caz.” She went on to explain that Caz:

[W]as not able to get out. They said he was stuck. He was still alive at that point. He was — a couple of the guys had, like, squeezed his hand and he squeezed back. But there just wasn’t anything that they could do to, like, move — get the van off of him or anything.

Clayton Peters, another passenger in the car, testified that after he unsuccessfully attempted to lift the vehicle:

There really wasn’t much for us to do, and I didn’t want to leave [Caz] there by himself, because if it was me, I wouldn’t want to be by myself. So I grabbed his hand, he was squeezing my hand. And I put my hand on his stomach, and I crawled over to see his face and his eyes were still open. And I didn’t like the sight of that, so I backed up, and I just waited for everything to go. I didn’t know what else to do.

Caz’s friends could not get him free. He was trapped in the van, and he ultimately died from suffocation. Clayton indicated that he had felt Caz’s last breath, and that from the time of the accident until Caz’s last breath was “maybe a few minutes.”

[¶ 13.] A highway patrolman arrived at the scene of the accident shortly after it happened. Trooper Pete Eng spoke to Darby. After waiving his Miranda rights, Darby told Eng that he had been consuming alcoholic beverages. A preliminary breath test conducted at the scene revealed that Darby had a .103 breath/alcohol test. This test was administered approximately four hours after Darby left the Haases’.

[¶ 14.] Darby was taken to a hospital, where three blood samples were taken one hour apart. The results of those tests revealed blood alcohol contents of .118, .10, and .08 percent. From those tests and his observations, Eng opined that at the time of the accident, Darby “was under the influence of an alcoholic beverage.”

[¶ 15.] Following the accident, Welch brought wrongful death and survival actions against Darby Klein, Earla Klein, and the Haases. Both Darby and Earla Klein failed to answer, and appeared throughout trial in default. The trial court instructed the jury that the Kleins admitted both negligence and proximate cause. The trial court also instructed that the contributory negligence and assumption of the risk defenses were available to the Haases, but not the Kleins. The trial court ultimately instructed the jury that the Kleins, “have admitted liability in this case. Therefore, the only issue for you to decide against Darby Klein and Earla Klein is the amount of damages, if any, [Welch] is entitled to recover.”

[¶ 16.] Although there was no dispute that Haases provided no alcohol at the party, the trial court also instructed the jury on the law concerning the provision of alcohol by a social host. The trial court further instructed on the liability of landowners. The trial court gave these instructions because it had observed jury confusion over the issues in voir dire.

[¶ 17.] After a four-day trial, the jury returned a general verdict in favor of all four defendants. Welch did not object to this general verdict form. Welch subsequently filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a motion for new trial. The trial court denied the motion as to all defendants. Welch appeals, raising the following issues:

1. Whether the trial court erred in denying Welch’s motion for a judgment notwithstanding the verdict, or alternatively, motion for new trial.
2. Whether the trial court erred in instructing the jury on the social host and landowner liability issues.
ANALYSIS AND DECISION
1. Whether the trial court erred in denying Welch’s motion for a judgment notwithstanding the verdict, or alternatively, motion for new trial.

[¶ 18.] In supporting his motion for JNOV or new trial, Welch argued that “[t]he jury’s decision in this case seems to reflect the general attitude in Tripp County that Winner’s annual graduation party is a necessary evil, and that it should not result in civil liability to anyone under any circumstances.” Welch therefore concluded that the verdict was “unfair and unreasonable,” and the result of “passion, prejudice, or mistake of law.” Welch relies upon following quote from a Pennsylvania case to illustrate his position that the jury’s decision ignored uncontested evidence and was the result of passion, prejudice or mistake of law:

[T]he jury is free to believe all, some, or none of the testimony presented by a witness. However, this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial. The synthesis of these conflicting-rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.

Neison v. Hines, 539 Pa. 516, 653 A.2d 634, 637 (1995) (internal citations omitted). As a general proposition, we agree with this rule. We therefore proceed to consider its applicability to each motion and each defendant.

Motion for JNOV

[¶ 19.] Our review of motions for JNOV is conducted under the abuse of discretion standard. Fechner v. Case, 2003 SD 37, ¶ 6, 660 N.W.2d 631, 633.

Rulings on motions for judgment notwithstanding verdict are reviewed under the abuse of discretion standard. Evidence and inferences most favorable to the nonmoving party are examined to determine whether there is substantial evidence to support the jury’s judgment. Conflicting evidence is not reweighed; witness credibility is not reassessed. The moving party’s evidence is only given consideration if it is uncontradicted or tends to amplify, clarify or explain evidence which supports the verdict.

Id. at 633-34 (internal citations omitted).

[¶20.] On appeal and at the original motions hearing, Welch only argued that “the trial was fundamentally unfair.” He explained:

I don’t know if judgment notwithstanding the verdict is the right thing, and I don’t know whether a new trial is the right thing, Your Honor. I think, though, that at some level, we need to step back from the case and just say, what is fair? What was presented? What arguments were considered? And then try to decide what should be done to correct the wrong that the jury committed.

We review this argument as it relates to the Haases and then as to the Kleins.

a. Allen and Zenda Haase

[¶ 21.] We first observe that there is no general “fairness” standard to be considered under a motion for JNOV; rather, the standard is “whether there is substantial evidence to support the jury’s judgment.” See supra ¶ 19. Furthermore, that evidence must be reviewed “in a light most favorable to the verdict.” C & W Enters., Inc. v. City of Sioux Falls, 2001 SD 132, ¶ 11, 635 N.W.2d 752, 756. Considering the appropriate standard of review, the trial court could not have granted a JNOV against the Haases unless the court determined that, as a matter of law, Haases were negligent; Caz’s negligence, if any, was slight; Caz did not assume the risk; and, that the Hasses’ negligence proximately caused the accident and damages. However, Haases submitted evidence in support of these defenses. Therefore, those issues became questions for the jury, and this Court does not reweigh the facts supporting those defenses. Considering the evidence Haases submitted on these issues, the trial court did not abuse its discretion in denying Welch’s motion for JNOV.

b. Darby Klein and Earla Klein

[¶ 22.] The motion for JNOV against the Kleins is subject to a procedural defect. A motion for JNOV is linked to a party’s motion for directed verdict, which must first be brought before the trial court at the conclusion of evidence at trial. Therefore:

A motion for judgment n.o.v. “is based on and relates back to a directed verdict motion made at the close of all the evidence.” The grounds for the directed verdict motion are merely brought before the trial court for a second review.

Id. (internal citations omitted).

[¶ 23.] Here, Welch made no motion for directed verdict against the Kleins at trial. Therefore, Welch waived the right to ask the trial court to enter a JNOV against the Kleins. As we stated in Moosmeier v. Johnson, 412 N.W.2d 887, 888 (S.D.1987):

The denial of the motion for judgment n.o.v. is not properly before us since such motions “can be considered only when the moving party at trial requested a directed verdict and thus the motion in effect brings before the trial court for review a second time the grounds urged in support of the motion for directed verdict.”

Because Welch did not request a directed verdict against the Kleins, the motion for a JNOV issue is not properly before us. Even when the issue involves a plaintiff questioning the sufficiency of the damage award, the prior motion is required. As the Eighth Circuit Court of Appeals observed:

Permitting movants for any reason to make an initial motion for judgment as a matter of law [JNOV] after the return of the jury verdict deprives the nonmoving party the opportunity to cure the deficiency in their case, if any exists. Allowing the motion to go forward would set an unacceptable precedent.

Douglas County Bank & Trust Co. v. United Fin. Inc., 207 F.3d 473, 478 (8thCir.2000). We agree.

Motion for New Trial

[¶ 24.] Welch argues that “[b]ased upon the evidence presented at trial, the jury’s decision to award zero damages was inconsistent and contrary to law.” Welch asserts that because the jury awarded no damages against Darby Klein and Earla Klein (who were in default), the jury’s decision “calls into question the jury’s entire decision making process.” Welch surmises that:

[I]f the jury acted under passion, prejudice, or mistake of law while considering the claims against Darby and Earla Klein, [because they were in default,] how can anyone say with certainty that the jury was not acting under passion, prejudice, or mistake of law while considering the claims against Allen and Zenda Haase?

[¶ 25.] However, Welch utilizes an incorrect standard of review. This Court has often stated that:

In reviewing a jury award ... “[i]f the jury’s verdict can be explained with reference to the evidence, rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed.” Thus, “if a verdict is susceptive to more than one construction, the construction which sustains the verdict must be applied.” Neither the trial court nor this [C]ourt may set aside a verdict unless it is clearly “unreasonable, arbitrary and unsupported by the evidence.”

Zahn v. Musick, 2000 SD 26, ¶ 31, 605 N.W.2d 823, 830 (internal citations omitted) (emphasis added). Furthermore, “[t]he trial court is best able to judge whether the damages awarded [or not awarded] by a jury are the product of passion or prejudice.” Maryott v. First Nat’l Bank of Eden, 2001 SD 43, ¶ 26, 624 N.W.2d 96, 105 (quoting Berry v. Risdall, 1998 SD 18, ¶ 9, 576 N.W.2d 1, 4). We again review this motion as it relates to the Haases and then as to the Kleins.

a. Allen and Zenda Haase

[¶ 26.] In this case, there are many “references to the evidence” that support the verdict in favor of the Haases. In fact, at the trial court hearing and in his brief to this Court, Welch himself has identified numerous possibilities that support the jury verdict. Welch’s brief states:

Allen and Zenda Haase will no doubt argue that ... the decision to award no damages against them was probably based upon one of their affirmative defenses. However, there is absolutely no way to know: 1) if the jury found that Welch’s claims were barred because Caz Welch assumed the risks; 2) if the jury found that Welch’s claims were barred by contributory negligence that was more than slight; 3) if the jury simply found that neither Allen or Zenda Haase were negligent; 4) if the jury found that Allen and/or Zenda Haase was/were negligent, but the negligence was not a proximate cause of the wreck that caused Caz Welch’s suffocation and death; 5) if the jury awarded zero damages while acting under passion, prejudice, or a mistake of law; or 6) ... if the jury was confused by the improper instructions on landowner liability and South Dakota’s Social-Host statute.

Because reasons (1) through (4) all support the verdict and can be explained with references to the evidence, rather then juror passion, prejudice or mistake of law, we affirm the denial of the motion for a new trial against Haases.

b. Darby Klein and Earla Klein

[¶ 27.] The motion for new trial relating to Kleins is, however, different because they admitted liability on both the wrongful death and the survival actions. In fact, the trial court removed all defenses from the jury’s consideration, and the jury was instructed to only determine Welch’s damages. Because the Kleins admitted liability, the motion should have been granted if there was undisputed evidence of pain and suffering in the survival action or pecuniary loss in the wrongful death action. For the reasons set forth below, we believe that there was such evidence. Therefore, Welch was entitled to a new trial on damages for Kleins’ admitted liability in the wrongful death and the survival actions.

(Wrongful Death Cause of Action)

[¶ 28.] “In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action will be brought.” SDCL 21-5-7. With respect to pecuniary injury, Caz’s mother and grandfather first identified what Caz would provide for them. The evidence reflected that Caz was especially close to his grandparents because he lived with them during high school after his mother moved to Aberdeen. The testimony also indicated that Caz planned to attend school. Caz’s mother testified that Caz had been accepted to Mitchell Vo-Tech, where he planned to study computer programming. She testified that Caz “always told his grandpa and grandma he was going to college, and make a lot of money, and buy them a home.” “South Dakota law requires that the beneficiaries show that they could ‘reasonably expect’ to receive such benefits.” Halvorsen v. Dunlap, 495 F.2d 817, 822 (8thCir.1974) (further citations omitted).

[¶ 29.] In addition to the forgoing claim, “in a wrongful death action, wherein the decedent was a minor, ... [the] loss of companionship and society, which may be expressed by, but is not limited to, the words ‘advice,’ ‘assistance’ and ‘protection’ are proper elements of damage for [the jury] to consider in reaching their verdict.” Anderson v. Lale, 88 S.D. 111, 122-23, 216 N.W.2d 152, 158-59 (1974). This rule also applies in cases regarding the death of an adult child. Halvorsen, 495 F.2d at 821. Caz was eighteen years old at the time of the accident.

[¶ 30.] With respect to a loss of companionship and society, Caz’s mother testified that Caz was “a gentle guy” who “smiled all the time.” She said that he was an avid hunter and fisherman, and he enjoyed bowling and playing football. Despite living in a different city, she maintained a close relationship with Caz, and they “talked every day on the computer at 10 o’clock.” Caz’s grandfather, Larry Welch, also testified that:

Caz Welch was my — he was a special grandson. We had him most of his life. And we loved him like a son. Me and him [sic], we went fishing all the time. Hunting. Trapping. We went pheasant hunting. And just seemed like we was [sic] together all the time. And he would help me cut up deer, and I learned [sic] him to skin pheasants, and he would go down and he would work for Kucera’s, skin peasants. We went camping together, took Darby with us. Went swimming. Went to the Keyap-aha River thousands of times. ■ And I think of him every day. He was just a special boy.

Larry Welch also testified about things that he and Caz were planning to do, but had not yet had a chance to do together. He stated that Caz “was like a son. And he was a buddy. And I ache for him every day.”

[¶ 31.] Considering all of the foregoing, there was undisputed evidence of some pecuniary loss. Therefore, in light of Kleins’ admission of liability for damages, we believe that the verdict on this cause of action was “so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison, 653 A.2d at 637. We therefore reverse and remand the wrongful death cause of action against Kleins for a new trial on damages.

(Survival Action)

[¶ 32.] We also believe that the trial court erred in failing to grant a new trial on Klein’s admitted liability for damages arising from the survival action. On this cause of action, the only decision for the jury was to determine the amount of damages Welch sustained for the pain and suffering he endured before his death. The jury’s decision to award no damages for the uncontested pain and suffering endured in this death by suffocation was also “disproportionate to the uncontested evidence.” Id. We therefore reverse and remand the survival action against Kleins for new trial on damages.

2. Whether the trial court erred in instructing the jury on the social host and landowner liability issues.

[¶ 33.] Welch also argues that the trial court created jury confusion on Welch’s claims against the Haases by instructing the jury on a social host’s liability for providing alcohol and on landowner liability law. Welch contends that the problem was compounded when Haases’ lawyer stated that “social host immunity applies” during his closing argument. Welch concedes that Haases’ lawyer did not pursue that argument any further, but contends that “the damage had been done.” Welch concludes that the instructions created reversible error requiring a new trial “because they conflicted with the applicable law, they were confusing, and they were misleading.” We disagree.

[¶ 34.] In order to reverse for an improper jury instruction, the appellant must show not only that the instruction in question was erroneous when the instructions are viewed collectively, but also that the jury’s verdict would have changed as a result of the erroneous instruction had it not been given. City of Bridgewater v. Morris, Inc., 1999 SD 64, ¶ 6, 594 N.W.2d 712, 715. So also, instructions that are “Misleading, conflicting, or confusing” constitute reversible error; “[nonetheless, an appellant must show not only that a particular instruction was erroneous, but also that is was prejudicial, meaning the jury probably would have returned a different verdict if the faulty instruction had not been given.” Davis v. Knippling, 1998 SD 31, ¶ 4, 576 N.W.2d 525, 526-27 (further citations omitted).

[¶ 35.] The first instruction at issue is instruction 15A, which governed the liability of owners of land. This instruction indicated that:

Defendants Allen Haase and Zenda Haase cannot be found liable or negligent as defined in these instructions based upon their ownership of land. There is no injury or death that occurred on the land owned by Allen Haase and Zenda Haase, and Plaintiff [Welch] is not making a claim against them that relate [sic] to their being negligent or at fault as landowners.

Welch’s only objection to this instruction was, “I think this instruction just confuses the issue about — we made it clear we are not suing for any land ownership issues, and I don’t think it is a necessary instruction.” Notably, Welch did not object on any ground other than jury confusion. Therefore, we only review the “confusion” objection.

[¶ 36.] With respect to jury confusion, the trial court responded to Welch’s objection, observing:

The Court is going to give 15A. I think in particular stemming from voir dire where there tended to be some assumptions that landowners did have a — some liability issues, I just think that in order to clearly state the law to the jury, that this instruction is necessary.

We agree with the trial court’s observation that, because some jurors thought land owners could be liable as a matter of law, there was a sufficient basis to give a clarifying instruction. Welch also failed to demonstrate prejudice because the trial court also gave other instructions explaining the circumstances under which Haases would be liable for then negligence.

[¶ 37.] The second instruction at issue summarizes South Dakota’s statute governing a social host’s furnishing of alcohol to another. Instruction 15B indicated that:

Under South Dakota law, a social host who furnishes any alcoholic beverages is not civilly liable to any injured person or his estate for any injury suffered, including any action for wrongful death, or property damage suffered because of the intoxication of any person due to the consumption of such alcoholic beverages. The South Dakota Legislature has found that the consumption of alcoholic beverages, rather than the serving of alcoholic beverages, is the proximate cause of any injury inflicted upon another by an intoxicated person.
The court has ruled, as a matter of law, that Allen Haase and Zenda Haase are not social hosts as defined by South Dakota law. Plaintiff does not claim that Allen Haase and Zenda Haase furnished the alcohol for the Winner High School graduation party.

[¶ 38.] Welch objected to this instruction claiming that it would confuse the jury, and that the instruction was not applicable to the case. However, the trial court again observed that:

[G]iven juror answers in the selection process, I believe that there is a belief in the community that if you have the beer there, that that in and of itself makes you responsible for whatever happens, and that is not the theory of this case, it is not the plaintiffs claims. And I think just to give the jury a full understanding of South Dakota law, that this is also necessary. The Court will give 15B.

[¶ 39.] On appeal, Welch argues that the instruction and the closing argument “created reversible error because they conflicted with the applicable law, they were confusing, and they were misleading.” However, because Welch only objected at trial on the basis of possible confusion and applicability of the instruction, we only review those issues. See SDCL 15 — 6—51(a) (providing that “[n]o party may claim error for the giving or failure to give an instruction unless that party objects stating distinctly the matter objected to and the grounds for the objection”).

[¶ 40.] With respect to applicability and jury confusion, we again agree that this instruction was given to alleviate rather than create juror confusion. As with the prior issue, voir dire indicated juror misconception concerning liability for alcohol on the property. Some jurors apparently believed that having alcohol present may have made a landowner liable as a matter of law. Considering the apparent misconceptions of the law and Welch’s claims, this instruction was applicable and was not confusing.

[¶ 41.] We finally observe that Welch has not contended that the verdict would have changed had either of the contested instructions not been given. In his brief to this Court, Welch merely contends that “there is simply no way to say with certainty why the jury found in favor of all four Defendants/Appellees.” Because Welch fails to indicate how the verdict would have been favorable had instructions 15A and 15B not been given, we find no prejudicial error.

[¶ 42.] Affirmed in part, reversed in part, and remanded.

[¶ 43.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Although Kleins appeared at trial, they did not appear or participate in this appeal.

      . For example, in Instruction No. 42, the court instructed the jury that the Kleins had "admitted that they were negligent and that their negligence was a proximate cause of the injury and death of Caz Welch.” Furthermore, in Instruction No. 12, the court identified the claims and defenses. The court instructed that Welch claimed the Kleins were both negligent and that their negligence "contributed to the injury and death of Caz.” The court then instructed that the Kleins have "admitted liability [not just negligence] on this claim. The only issue remaining for the jury is the amount of damages....” Finally, in Instruction No. 21, the court distinguished the Kleins' admitted liability from the issues to decide against the Haases. With respect to the Haases, the court instructed that the jury needed to determine the issues of "liability, contributory negligence, assumption of the risk, and proximately caused damages (Emphasis added.) However, the court instructed that the Kleins have "admitted liability." Therefore, the only "issue for you to decide against Darby Klein and Earla Klein is the amount of damages, if any, the Plaintiff is entitled to recover.”

      . These instructions stated "Defendants Darby Klein and Earla Klein have admitted their negligence and the recovery of the Plaintiff against Darby Klein and Earla Klein shall not be barred by the assumption of the risk ...” and that "the recovery of the Plaintiff against Darby Klein and Earla Klein shall not be reduced by any contributory negligence....”

      . Welch made reference to funeral expenses, but did not quantify that pecuniary injury.

      . For example, in Instruction No. 25, the court instructed:
      Allen Haase and Zenda Haase, by voluntarily taking control of the car keys and acting as a gatekeeper at the gate, had a duty to use reasonable care in allowing Darby Klein to get control of his car keys and relinquishing control of the vehicle to him thereby allowing him to leave the party with passengers.

      . In the past, this Court has held that, based upon SDCL 15-6-51(b), "no grounds of objection to the giving or the refusing of an instruction shall be considered either on motion for new trial or appeal, unless presented to the court upon the ‘settlement’ of such instructions.” See, e.g., Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, 641 N.W.2d 112; Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, 573 N.W.2d 493; Sundt Corp. v. South Dakota Dep’t of Transp., 1997 SD 91, 566 N.W.2d 476; Knudson v. Hess, 1996 SD 137, 556 N.W.2d 73. Moreover, we have stated that:
      The complaining party must have specified and stated the grounds for [the] objection, and a mere general objection is not sufficient to preserve the right to appeal. An attorney must be clear when objecting to jury instructions "so the trial court is advised of what possible errors exist and be granted the opportunity to correct any instructions.”

        Parker, 2002 SD 29, ¶ 15, 641 N.W.2d 112, 118 (citing Sundt, 1997 SD 91, ¶ 17, 566 N.W.2d at 480). Although the language of SDCL 15-6-51(b) that these cases quote was deleted from the 1998 revision of SDCL 15 — 6— 51(b), SDCL 15-6-51(a) still provides that "[n]o party may claim error for the giving or failure to give an instruction unless that party objects stating distinctly the matter objected to and the grounds for the objection.” Id. Therefore, we continue to adhere to the rules recognized by this line of cases.


author: ERICKSON, Judge.

text:
    2003 SD 138
    Ruth E. WILLIAMS, Individually and as Executrix for the Estate of James E. Williams, Plaintiff and Appellant, v. Ruben G. MAULIS, d/b/a Maulis Law Office, Defendant and Appellee.
    Nos. 22589, 22599.
    Supreme Court of South Dakota.
    Argued Aug. 26, 2003.
    Decided Dec. 3, 2003.

      Thomas M. Tobin of Tonner, Tobin & King, Aberdeen, SD, for plaintiff and appellant.
    William P. Fuller of Woods, Fuller, Shultz <& Smith, Sioux Falls, SD, for defendant and appellee.
   ERICKSON, Judge.

[¶ 1.] Ruth E. Williams, individually and as executrix for the Estate of James E. Williams, brought a legal malpractice action against attorney Ruben G. Maulis and his law office. Ruth, however, did not commence this action until August 16, 2000 when a complaint was served upon attorney Maulis. This was five years and seven months after the signing of a contract for deed on December 27, 1995, and three years and ten days after Ruth retained another attorney to assist her with her estate planning. Maulis moved for summary judgment on the grounds that the three-year statute of limitations period had expired. The trial court granted the motion.

[¶ 2.] For reasons set forth below, the trial court is affirmed in part and reversed in part.

FACTS

[¶ 3.] James and Eldon Williams were brothers, married to sisters. They farmed together and had an oral partnership for years. Maulis represented both James and Eldon over the years. In April 1984 they entered into a written partnership buy-sell agreement which Maulis drafted. James died on February 14, 1995. Maulis was retained to settle the affairs of James’ estate. During the settlement of the estate, Eldon became hesitant to activate the buy-sell agreement because of high interest rates. Instead, he entered into negotiations to purchase the property by contract for deed at a reduced rate of interest.

[¶ 4.] Maulis represented Ruth individually and as executrix of the estate for purposes of negotiating the contract for deed. An agreement was reached and the parties executed a contract for deed on December 27,1995. The contract for deed was between Ruth E. Williams, both individually and in her capacity as executrix of the James E. Williams Estate and Eldon and Mary Williams.

[¶ 5.] Maulis continued to represent the estate. On August 6, 1997, Ruth signed an authorization releasing estate information to James D. Taylor, a Mitchell attorney for the purpose of assisting her with a new estate plan. That authorization was sent to Maulis on August 13,1997. Maulis continued to represent the estate until its closing on January 8,1998.

ANALYSIS

[¶ 6.] This Court’s standard of review regarding a trial court’s grant or denial of summary judgment is well established:

Summary judgment is authorized ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.’ We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. 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.

Dakota Pork Industries v. City of Huron, 2002 SD 3, ¶ 5, 638 N.W.2d 884, 885.

A. SUMMARY JUDGMENT-STATUTE OF LIMITATIONS

[¶ 7.] The point at which a period of limitations begins to run must be decided from the facts of each case, and statute of limitations questions are normally left for a jury. Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, 575 N.W.2d 457. There are several exceptions to that rule. First, “a court may determine a question of fact by summary judgment if it appears to involve no genuine issue of material fact and the claim fails as a matter of law.” Daktronics, Inc. v. McAfee, 1999 SD 113, ¶ 16, 599 N.W.2d 358, 362. Second, deciding what constitutes accrual of a cause of action entailing statutory construction, presents an issue of law. Bosse v. Quam, 537 N.W.2d 8 (S.D.1995).

[¶ 8.] We must ascertain whether there is any genuine issue of material fact concerning the date the cause of action accrued. If not, and if the applicable limitations period has expired as a matter of law, then the defendant is entitled to summary judgment. Keegan v. First Bank of Sioux Falls, 519 N.W.2d 607 (S.D.1994).

[¶ 9.] The statute of limitations for legal malpractice actions in South Dakota is found in SDCL 15-2-14.2, which provides with certain exceptions, that a malpractice action can be commenced “only within three years after the alleged malpractice, error, mistake or omission shall have occurred.”

[¶ 10.] “[T]he statute of limitations on a claim of attorney malpractice begins to run at the time of the alleged negligence and not from the time when the negligence is discovered or the consequential damages are imposed.” Keegan, 519 N.W.2d at 612.

[¶ 11.] The continuous representation doctrine can also toll the statute of limitations for legal malpractice. Greene, 1998 SD 16 at ¶ 10, 575 N.W.2d at 460. The continuous representation doctrine in a legal malpractice action applies when there is a:

[C]lear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney[.] This relationship is one which is not sporadic but developing and involves a continuity of the professional services from which the alleged malpractice stems. Furthermore, the application of this doctrine should only be applied where the professional’s involvement after the alleged malpractice is for the performance of the same or related services and is not merely continuity of a general professional relationship.

Keegan, 519 N.W.2d at 613 (citations and internal quotations omitted)(emphasis added). The continuous representation itself must occur before the three-year statute of limitations has run, to effectively toll it. Id. Continuous representation is at the gist of the issues in this case.

[¶ 12.] The professional service from which Ruth claims malpractice arose was Maulis’ participation in the negotiation, drafting and endorsement of a contract for deed dated and signed December 27, 1995. There is no evidence that Maulis continued to represent Ruth, individually, after the signing of the contract for deed. However, it is conceded that Maulis continued to represent the estate of James E. Williams until 1998, when the estate was closed. In this instance Maulis had two clients at the time of negotiation of the contract for deed — Ruth in her individual capacity and Ruth in her trust capacity as executrix of the estate. Maulis’ representation must be analyzed separately as to each of these clients.

[¶ 13.] The trial court found in its memorandum opinion that Ruth had “not alleged any specific facts showing that he represented her in her individual capacity any time after December 27, 1995.” The trial court found that the attorney-client relationship continued with reference to the estate until sometime after August 13, 1997. However, the court went on to find that Ruth “has not alleged any specific facts to show that this representation related to the contract for deed, nor has she alleged any specific facts to show that her relationship with Maulis was continuous, developing or dependent.”

[¶ 14.] Maulis argues that the representation ended at the very least on August 13, 1997. He argues that (1) any negligent handling of the sale of the real estate is not related to the handling of the legal affairs of the estate; and (2) that any continuous representation ended when Ruth consulted with a different attorney. Maulis’ theory is that because the lawyer-client relationship is based upon a trust relationship between client and the lawyer, the consultation with another lawyer marks an end of that relationship.

[¶ 15.] Was Maulis’ continued representation of the estate a continuation of the same or related services as he performed for the estate in negotiating the contract for deed?

[¶ 16.] Maulis concedes he continued to represent Ruth as executrix of the estate until it closed on January 8, 1998. In her deposition, Ruth testified that she hired Maulis because her husband had used him and had trust and confidence ■ in him. He became not only her lawyer, but her financial advisor.

[¶ 17.] There is no single rule for what is or is not continuous representation for all cases. This is particularly true in the probate of an estate. It is impossible to state one rule for all cases, because of the differences in the background, complexity and nature of the estate. For example, what is needed to manage and close an estate consisting primarily of real estate is much different than one consisting primarily of investments. Each case requires different types of activity on the part of an attorney.

[¶ 18.] In the context of an estate probate, the role of the executrix’s attorney handling the negotiation and execution of a contract for deed cannot be looked at as a single isolated event. The sale of the property in question obviously involved the estate. Management of an estate involves inventorying the assets, collecting the assets, managing the assets while in the executrix’s possession, allowing and paying claims, and distributing the remainder of the estate and finally closing it out. In this context the estate had to deal with the disposition of the real estate, either through the closing of the original buy-sell agreement, or some other means. The contract for deed and the closing of the estate are clearly related services and are part of a single act of representation.

[¶ 19.] After August 1997 was the attorney-client relationship towards the executrix of the estate an ongoing, continuous, developing, and dependent relationship?

[¶ 20.] At some point prior to August 13, 1997, Ruth decided to have her personal estate planning reviewed by a different attorney. Maulis argues that this is a clear indication that the attorney-client relationship was no longer ongoing, continuing, developing and dependent. Maulis argues that a letter from attorney James Taylor, dated August 13, 1997, along with an authorization to release information dated August 6, 1997, ended his representation of the estate because it ended the trust relationship between client and lawyer. It did not.

[¶ 21.] A close reading of both documents indicates that Maulis was not fired, nor replaced. Rather, the purpose of the letter and authorization was to inform Maulis that Taylor had been hired to help Ruth with a new estate plan. To assist in that process, the authorization allowed Taylor to examine and copy documents. Apparently, it was at that point Taylor discovered that the estate was not yet closed. Whether prompted by this letter, or perhaps other correspondence or discussions (it is not clear from the record) Maulis then closed the estate in January 1998. However, he was still representing Ruth in her capacity as executrix.

An attorney who is employed to probate an estate is not employed by and does not represent the estate. Rather, the personal representative (administrator or executor) is the client and the attorney represents them as their counsel. The selection of an attorney by the decedent is not binding upon the personal representative because, if the attorney is derelict in his duties, the personal representative is liable and so he must have the power to select his or her own attorney.

Christie v. Dold, 524 N.W.2d 866, 870-871 (S.D.1994).

[¶ 22.] Maulis argues that while he was still attorney of record the estate matters were all but ended and the estate merely needed to be closed. The hiring of Taylor, he contends, indicates that the relationship was no longer one of trust and was no longer developing. The word developing is subject to many definitions. Webster’s Third New International Dictionary, 618 (1971). Taken in the context of continuous representation it merely means a continuity of professional services, rather than a sporadic or merely episodic representation from time to time, or from occurrence to occurrence, without some other connection.

[¶ 23.] Maulis’ argument is not persuasive. The problem is that while the trust aspect of the relationship may have been deteriorating, the relationship was ongoing, continuing and dependent, because he had not yet closed the estate. The relationship was naturally winding down and Ruth’s trust in Maulis may have been eroding, but he was still her attorney for the purposes of closing out the estate. To decide otherwise creates a slippery-slope of convoluted reasoning almost impossible to define. Every malpractice trial would begin with a search for that point in the relationship where it went sour, whereupon we would then re-visit the statute of limitations.

[¶ 24.] Therefore, summary judgment is affirmed as to the dismissal of the complaint brought by Ruth in her individual capacity, but is reversed as to the dismissal of the complaint brought by Ruth in her capacity as executrix.

B. SUMMARY JUDGMENT — INSUFFICIENCY OF EVIDENCE OF DAMAGES

[¶ 25.] Maulis asks this Court to review whether there is anything in the record to support evidence of damages caused by any acts or omissions on his part. Proof of service of such notice of review is present in the Supreme Court clerk’s file. SDCL 15-26A-22. Maulis, as appellee, has complied with all statutory prerequisites, and this issue is properly before the court. Yet, Ruth did not file a reply brief to respond to the notice of review issue. SDCL 15-26A-62.

[¶ 26.] It is troublesome to the Court that no reply was filed given Maulis’ properly filed notice of review. We are denied a proper developed briefing and appellate argument. By failing to treat Maulis’ notice of review issue, Ruth “has acted contrary to statute [SDCL 15-26A-62] and we could therefore deem that [s]he conceded the issue.” Drier v. Great American Ins. Co., 409 N.W.2d 357, 361 (S.D.1987). In Drier, 409 N.W.2d at 361-362, the Court concluded that “absent statute, defendants are not entitled to a reversal as a matter of right, and in exercise of our discretion,” the court may review the matter and resolve any doubt, as to what the disposition should be.

[¶ 27.] While no specific values were given, Ruth, in an affidavit in response to summary judgment, outlined her damages. She wrote that if she had been properly represented, she could have stayed in the partnership and would not have had to sell her income producing assets; she could have negotiated a contract more favorable to herself, both as to price, payment provisions and interest rate; or if negotiations failed, she could have terminated the part-nei-ship and sold the land on the open market, at a time when land prices in the area were increasing rapidly, instead of at the appraisal price as of the time of her husband’s death.

[¶ 28.] While we elect not to deem the issue conceded, we need not address this issue at this time since the trial court did not address the issue because it granted summary judgment on other grounds. This Court has often said that “an issue not raised at the trial court level cannot be raised the first time on appeal.”

Action Mechanical v. Deadwood Historic, 2002 SD 121, ¶ 50, 652 N.W.2d 742, 755. And, more recently, this Court stated that it “will ordinarily decline to review issues not properly presented to the trial court.” Estate of Gaspar v. Vogt, Brown & Merry, 2003 SD 126, ¶ 15, 670 N.W.2d 918. In the present case, the issue was raised and properly presented below, but the trial court’s decision did not address this issue. Since we have partially reversed summary judgment on the issue of the statute of limitations, we need not decide this issue now. This issue is better left to the trial court, subject to appellate review once a trial court has made a decision. This issue is remanded to the trial court for further review.

CONCLUSION

[¶ 29.] Summary judgment is affirmed as to the dismissal of the complaint brought by Ruth in her individual capacity, but is reversed as to the dismissal of the complaint brought by Ruth in her capacity as executrix. Maulis’ notice of review is remanded to the trial court for further review.

[¶ 30.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 31.] ERICKSON, Circuit Judge, for SABERS, Justice, disqualified.

      . The malpractice action alleges that Maulis was also representing Eldon Williams and this conflict of interest was to the detriment of Ruth and the estate.


author: LARSON, Justice.

text:
    William YOHN and Rosemary Yohn, Appellees, v. The BOARD OF DIRECTORS/THE CLEAR LAKE SANITARY DISTRICT, Appellant.
    No. 02-1188.
    Supreme Court of Iowa.
    Dec. 17, 2003.
    Ivan T. Webber of Ahlers, Cooney, Dor-weiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellant.
    James M. Stanton of Stanton & Soren-sen, Clear Lake, for appellees.
   LARSON, Justice.

These plaintiffs, William and Rosemary Yohn, own three contiguous tracts of land within the city limits of Clear Lake, but outside the Clear Lake Sanitary District (district). Pursuant to Iowa Code section 358.16 (1999), the Yohns petitioned to have two of their three tracts annexed to the district. The district denied the application but informed the Yohns that it would permit annexation if the Yohns would include all three tracts. The Yohns appealed to the district court under Iowa Code section 358.23. The district court reversed and ordered the district to annex the two parcels as requested by the Yohns. The district appealed. We reverse and remand.

I. Facts and Proceedings.

The Yohns’ three tracts of land are referred to as parcels 3, 4, and 5. In 1995 the Yohns built a home on parcel 4 and, after receiving approval by the city and the sanitary district, connected their home to the district’s sewer system. The Yohns then began to pay a monthly sewer-use fee but did not pay the additional taxes that landowners in sanitary districts are required to pay. See Iowa Code § 358.18 (sanitary districts authorized to assess taxes for district expenses). They were not assessed the property tax because, contrary to the district’s mistaken belief, the Yohns were not in the sanitary district. On discovering its error, the district raised the monthly sewer-use bills for users outside the district from approximately $30 to $96 to compensate for the district’s loss of tax revenue. The Yohns responded by petitioning for annexation of two tracts— parcel 4, where their home is located, and parcel 5 because it has development potential. They omitted parcel 3 because it does not presently require sewer services.

The issue in this case is whether the district may legally require annexation of parcel 3 as a condition of granting the petition as to the balance of the Yohns’ property. The district contends that it is within its statutory authority to require inclusion of tract 3 as a reasonable way of raising the necessary revenue to operate the district’s treatment system. The district’s expenses are paid through sewer-use tax fees, and the property tax assessed by the district. When new property is added, the district’s tax base is increased and its ability to pay the expenses of the district is enhanced.

The parties agree that the applicable statute provides no authority for a sanitary district to involuntarily annex property to their district. The only means of adding property is by voluntary annexation under section 358.16. That statute provides in relevant part:

The board of trustees, however, may upon such petition of property owners representing at least twenty-five percent of the valuation of property not included within the district as constituted which seeks benefit from the operation of such sanitary district, include such property in the area involved within the limits of such sanitary district, and such added areas shall be subject to the same taxation as other portions of the district.

(Emphasis added.)

We have apparently never interpreted this paragraph of section 358.16. Iowa Code section 4.1(30)(a), (6), and (c) provides: “[t]he word ‘shall’ imposes a duty ... [,] [t]he word ‘must’ states a requirement ... [,] and [t]he word ‘may’ confers a power....” Use of the word “may” in section 358.16 strongly suggests the petitioners have no right to force the limited annexation of their property; this decision rests in the discretion of the district. The Yohns concede this as a general proposition of law. They argue, however, that the district’s action was arbitrary and capricious. We have defined those terms as “without rational basis; unconsidered, willful and irrational choice of conduct, unsupported by competent and substantial evidence.” In re Lone Tree Cmty. Sch. Dist., 260 Iowa 719, 724, 150 N.W.2d 637, 640 (1967). The Yohns point to the fact that parcel 3, which the board insisted be included in the annexation, “is presently planted to alfalfa with no physical improvements on it [and] contains no sanitary sewer improvements nor is it provided with sanitary sewer services.”

Their argument, apparently, is that tract 3 needs no sewer services now, and any annexation of that tract must await the need for such services. The district’s insistence on annexing it now, rather than at some future time, apparently is viewed as arbitrary and capricious. They rely on this language by the district court to support their argument that the district has no legal authority to require annexation of parcel 3 under these circumstances:

The evidence quite clearly shows that the Sanitary District desired to include as much property into the District as possible for purposes of retiring outstanding obligations incurred for purposes of building its new facilities. The residential property the Yohns sought to have annexed [their home] has an assessed value of $305,000.00 while the [lot in question] has an assessed value of $14,246.00.

As a factual matter, while parcel 3 might be planted to alfalfa now, it has development potential, as the Yohns have signed an agreement to sell it to a golf course developer. As a legal matter, the district was within its statutory authority to grant or reject the annexation petition in its entirety. We see no logical reason why the district could not legally grant the petition on condition it include all of the land contiguous to the district, either on the ground it will inure to the financial benefit of the district or to eliminate the need for a future annexation procedure to cover tract 3. In the end, the timetable for annexing tract 3 is not solely in the hands of the Yohns.

This case should be contrasted with one in which the exercise of the board’s discretion was clearly for an arbitrary purpose. In Kraizberg v. Shankey, 167 A.D.2d 370, 561 N.Y.S.2d 600 (1990), the board refused the establishment of a sewer district, “not based upon a determination of the public interest but upon the desire of the town residents and the [Sewer] Board to minimize development [of the area].” The court held the board’s action was arbitrary and capricious. Kraizberg, 167 A.D.2d at 371, 561 N.Y.S.2d at 601.

The plaintiffs have not shown that the actions of the board were motivated by any concerns other than the welfare of the district. We find no arbitrary or capricious conduct on the part of the board and conclude the district court erred in reversing the decision of the sanitary district. Accordingly, we reverse and remand for dismissal of the petition.

REVERSED AND REMANDED.