author:
SABERS, Justice.
      AMUNDSON, Justice

text:
    2002 SD 27
    Marie DAVIDSON, n/k/a Marie Myklegard, Claimant and Appellant, v. HORTON INDUSTRIES, INC., Employer and Appellee, and Sentry Insurance, Insurer and Appellee.
    No. 21970.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided Feb. 27, 2002.
    Rehearing Denied April 16, 2002.

      Ronald J. Hall of Siegel, Barnett & Schütz, LLP, Aberdeen, South Dakota, for claimant and appellant.
    Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, for appellees.
   SABERS, Justice.

[¶ 1.] Marie Davidson, n/k/a Myklegard (Davidson), appeals from a decision denying an award of workers’ compensation benefits. We reverse and remand.

FACTS

[¶ 2.] Davidson began working for Horton Industries in 1987. Horton Industries (Horton) makes fan clutches for trucks and buses. Davidson worked in several areas while employed with Horton. She was initially employed as a janitor, then moved into an accounting position. In September 1993, Davidson began working on the assembly floor putting together repair kits. In February or March of 1994, Davidson began working in the final assembly area. At the time of this claim, Davidson was employed in the final assembly area. This job involved assembling fan clutches and lifting and manipulating weights in excess of sixty pounds.

[¶ 3.] On May 10, 1994, while lifting a clutch part, Davidson experienced pain in her neck and right shoulder. Davidson informed her supervisor and left work. On May 11, Davidson was examined by Dr. Purintan who diagnosed right parascapu-lar strain and inflammation. Dr. Purintan prescribed medication and recommended a course of physical therapy. He further recommended that Davidson return to light duty work. In June 1994, Davidson returned to work for four to six hours per day.

[¶ 4.] Davidson’s pain did not improve. In September 1994, Horton’s insurer appointed a nurse case manager to Davidson to assist in her treatment and return to work. The case manager noted Davidson’s complaints of constant tingling in her right arm and hand, burning in her shoulder, and sharp radiating pains in her neck. The case manager arranged for Davidson to be examined by another doctor.

[¶ 5.] Throughout 1994, she was referred to numerous physicians, including Dr. MacDougall, an orthopedic surgeon, Dr. Malek, a neurosurgeon, Dr. Quinlan, an upper extremity orthopedic specialist, and Dr. Blow, a physiatrist, all of whom diagnosed her with chronic arm, shoulder and neck pain related to overuse. The physicians prescribed varying courses of medication and physical therapy and recommended only light work duty. Davidson, however, still did not improve.

[¶ 6.] . During this same time period, Horton and its insurer offered to have Davidson examined at the Mayo Clinic. Two of Davidson’s physicians also recommended that she attend a pain clinic, which her employer also offered to pay for. Davidson refused, mostly for personal reasons.

[¶ 7.] On January 24, 1995, Davidson went to the emergency room with severe neck and right shoulder pain where she was treated by Dr. Small. Davidson later returned to see Dr. Small who noted that Davidson had a limited range of motion and experienced extreme tenderness in her right shoulder. Dr. Small recommended that Davidson not work and referred her to an orthopedic surgeon, Dr. Johnson, at the request of her attorney. Horton did not authorize the visit to Dr. Johnson.

[¶ 8.] Dr. Johnson examined Davidson on February 7, 1995, and diagnosed her with myofascial pain disorder. Dr. Johnson recommended that she undergo a functional capacity evaluation (FCE). In late February, the FCE was completed at Sioux Valley Hospital. The FCE indicated that Davidson could perform a light-medium level of work, but should avoid repetitive use of her upper right extremity.

[¶ 9.] In May 1995, Dr. Quinlan approved a position for Davidson in Horton’s repair kit area. Horton offered her a job in this area, but she refused the offer based on a recommendation from Dr. Johnson. As a result of her refusal to work, Davidson’s temporary disability benefits were terminated after May 28, 1995.

[¶ 10.] In April 1996, Horton arranged for Davidson to be examined by Dr. Beng-ston at the Mayo Clinic. Dr. Bengston diagnosed her with chronic right shoulder myofascial pain syndrome. He. recommended that she avoid repetitive activity involving her right shoulder and concluded that she had reached her maximum medical improvement. He further concluded that her permanent partial disability would be zero-percent. On April 22, 1996, Horton and its insurer again terminated Davidson’s temporary disability benefits.

[¶ 11.] Horton again offered Davidson a position in the repair kit area and she returned to work on May 30, 1996. After approximately thirty minutes of work, she left, complaining of pain. Davidson returned to see Dr. Small who recommended no further work.

[¶ 12.] In September 1996, Davidson underwent another FCE at the Mayo Clinic. The second FCE showed greater restrictions than the first one and indicated she should not do repetitive activities with her upper right extremity. Dr. Bengston assigned Davidson a five-percent impairment rating and stated that she had reached maximum medical improvement. Horton’s insurer paid out the benefits available to her under this rating and cut off all weekly benefits.

[¶ 13.] On September 25, 1996, Horton and its insurer arranged for an independent medical exam by Dr. Tountas. After his exam, Dr. Tountas was unable to identify any underlying condition causing Davidson’s pain. He further stated that Davidson could return to full-time work without any restrictions and that she did not have any permanent partial disability.

[¶ 14.] In October 1996, Horton made Davidson another offer to return to work in the repair kit area. Davidson attempted to return to work in January 1997, but left work after less than one hour because of pain.

[¶ 15.] Davidson filed a petition for hearing with the Department of Labor, Division of Labor and Management (Department) on September 21, 1995, seeking an award of all available workers’ compensation benefits, including medical, temporary total disability, permanent partial disability and Cozine benefits and permanent total disability benefits under the odd-lot doctrine. A hearing was held before the Department, on November 5 and 6, 1997. On February 12, 1999, the hearing examiner found against Davidson, denying her claim for workers’ compensation benefits. On March 26, 1999, the hearing examiner entered findings of fact, conclusions of law and an order and judgment. The hearing examiner’s findings and conclusions stated that Davidson was not a credible witness and failed to support her claim for benefits with objective medical findings.

[¶ 16.] On April 7, 1999, Davidson filed a petition for review with the Secretary of Labor. The Secretary affirmed. Davidson then appealed her claim to the Fifth Circuit. Davidson filed briefs almost one year later and requested that the circuit court remand the case to the Department for reconsideration of its decision in light of new and material evidence. The circuit granted the motion to remand, but the Department determined that the new evidence was not material and had no impact on its original decision. The circuit court then affirmed the decision of the Department in its entirety on April 10, 2001 and entered judgment on April 16, 2001.

STANDARD OF REVIEW

[¶ 17.] This Court’s standard of review for workers’ compensation cases is well established:

We have often stated that “‘[u]nder SDCL 1-26-37, when the issue is a question of fact, then the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.’ ” Brady Mem’l Home v. Hantke, 1999 SD 77, ¶ 8, 597 N.W.2d 677, 679-80 (quoting Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citations omitted)). Under our review, “we are required to give 'great weight to the findings and inferences made by Department on factual questions.’ ” Id. (citations omitted). Further, “ ‘[i]f after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.’” Id. (additional citations omitted).

Belhassen v. John Morrell & Co., 2000 SD 82, ¶ 11, 613 N.W.2d 531, 535.

[¶ 18.] WHETHER THE DEPARTMENT ERRED IN DETERMINING CLAIMANT WAS NOT ENTITLED TO WORKERS’ COMPENSATION BENEFITS, INCLUDING MEDICAL, TEMPORARY TOTAL DISABILITY, PERMANENT PARTIAL DISABILITY AND COZINE BENEFITS AND PERMANENT TOTAL DISABILITY BENEFITS UNDER THE ODD-LOT DOCTRINE.

[¶ 19.] This Court has stated that when the issue presented “ ⅛ a question of law, the actions of the agency are fully reviewable.’” Belhassen, 2000 SD 82 at ¶ 11, 613 N.W.2d at 535 (quoting Brady Mem’l Home, 1999 SD 77 at ¶ 8, 597 N.W.2d at 679-80). For all the reasons stated herein, the Department erred in its findings of fact and conclusions of law. It is simply not right when seven doctors basically give a diagnosis of chronic right shoulder myofascial pain syndrome and reach a prognosis that claimant should not work for a period of time, for the hearing examiner to ignore such evidence in favor of a very brief independent medical exam conducted by a physician hired by the claimant’s employer. It is not enough to ignore the substantial evidence of pain because the cause cannot be determined. While we recognize that an agency may disregard one expert’s opinion in favor of another, it cannot disregard the similar opinions of numerous medical experts in favor of one expert hired by the insurer under these circumstances. Upon review of the entire record, we are firmly convinced that the Department’s action constitutes error in a conclusion of law. Because we believe basic errors have been made by ignoring seven similar medical reports, Davidson was denied a fair hearing and we reverse and remand.

[¶ 20.] Furthermore, in this case, a significant portion of the expert testimony was presented by means of deposition, affidavit and exhibit. This Court has stated that “[w]hen reviewing evidence presented by deposition, we do not apply the clearly erroneous rule but review that testimony as though presented here for the first time.” Foltz v. Warner Transp., 516 N.W.2d 338, 340 (S.D.1994) (quoting Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)) (citations omitted). See also, Truck Ins. Exchange v. CNA, 2001 SD 46, ¶ 6, 624 N.W.2d 705, 708 (stating this Court reviews “findings based on deposition testimony and documentary evidence under a de novo standard of review”). In Foltz, this Court reversed the Department of Labor’s denial of workers’ compensation benefits because it disagreed with the Department’s review of the evidence. 516 N.W.2d at 346-47. The Department supported its denial of benefits by relying solely on the deposition testimony of the employer and insurer’s medical experts and ignoring the opinions of three other medical experts. Id. at 346. Accordingly, this Court reversed the Department with a direction to enter judgment in favor of the claimant. Id. at 347.

[¶ 21.] This case presents a similar issue. The key issue is whether Davidson established unemployability because of her pain. This issue is dependent upon both the credibility of Davidson and the medical evidence offered to support her claims of pain. The Department denied an award of workers’ compensation benefits because it found that Davidson was “not a credible witness.” The Department stated that Davidson “has not established that she is obviously unemployable due to continuous, severe and debilitating pain. In fact, there is no basis in the record to explain Claimant’s significant pain complaints.” In the Department’s findings of fact, the examiner focused primarily on the deposition testimony of Horton’s expert Dr. Tountas, who claimed he was unable to reach a diagnosis as to Davidson’s condition because of lack of objective findings.

[¶ 22.] The findings of fact contain little about the hearing testimony of Dr. Small, and nothing about the sworn affidavits from Dr. MacDougall, Dr. Johnson, and Dr. Blow. Again, the Department stated that the “weight of the medical testimony” indicated “there is no basis in the record to explain Claimant’s significant pain complaints.” We disagree. Our review of the record reveals there is evidence supporting Davidson’s claims of pain. In their sworn affidavits, Dr. MacDougall, Dr. Johnson and Dr. Blow stated they believed Davidson suffered from myofascial pain disorder to the upper right extremity caused by repetitive overuse. Merely because these physicians were unable to readily ascertain the cause of Davidson’s pain does not justify ignoring their sworn statements.

[¶23.] This Court has stated that “a claimant purporting to suffer from continuous and debilitating pain must be credible, and any medical diagnosis based on an inaccurate and incomplete medical history cannot insulate a claimant from the Department’s findings.” Schneider v. South Dakota Dep’t of Transp., 2001 SD 70, ¶ 14, 628 N.W.2d 725, 730. In Schneider, a plurality Court upheld a decision by the Department of Labor which rejected the claimant’s and medical expert’s testimony as incredible because the claimant gave an incomplete representation of his injuries. 2001 SD 70 at ¶ 16, 628 N.W.2d at 730. Schneider is clearly distinguishable from the case at hand. Davidson has not presented a medical diagnosis “based on an inaccurate and incomplete medical history.” She has not made inconsistent statements concerning her medical history. Rather, her case is based on the medical testimony of several doctors all of whom basically agree that she suffers from myo-fascial pain syndrome. Furthermore, the insurer’s doctor stated that he did not question the opinions of Davidson’s treating doctors and did not believe that she was malingering or faking or that she suffers no pain.

[¶ 24.] The Department also claims Davidson’s testimony regarding her pain is not credible because of surveillance videotapes showing her engaging in certain activities such as weed pulling in her garden and carrying items with her right arm. With respect to these videotapes, the Department stated that “Claimant is shown moving with ease and at no time does she appear to be in any physical discomfort.” Another videotape of Davidson shows her performing the duties of her job in the repair kit area on January 30, 1997. The Department again states that “it is impossible to accept Claimant’s testimony that she was experiencing such extreme pain after viewing the video.” Davidson, however, was unable to continue this work after less than one hour.

[¶ 25.] The Department’s reliance on these tapes is questionable. See Foltz, 516 N.W.2d at 346 (questioning the Department of Labor’s reliance on surveillance tapes and determining that they were of little consequence in assessing claimant’s credibility). At the hearing, Davidson readily admitted to engaging in weed pulling and grocery shopping, but stated that she had to continue with some normal daily activities despite the pain. Moreover, this Court further questions the Department’s reliance on these videotapes, because after reviewing them, we were unable to find any activity demonstrating significant use of Davidson’s upper right extremity. Attacking Davidson’s credibility on the basis of a few videotapes which provide only brief glimpses of activities which she admits to doing is insufficient to counter the medical testimony of Dr. Small, Dr. MacDougall, Dr. Johnson and Dr. Blow. The medical conclusion of myo-fascial pain syndrome reached by these four physicians was not substantially challenged by Horton at the time of the depositions or by these videotapes.

[¶26.] The hearing examiner failed to support its finding that Davidson’s testimony is not credible with any substantial evidence. In Johnson v. Albertson’s, this Court upheld a hearing examiner’s determination that claimant’s testimony was incredible. 2000 SD 47, ¶¶ 24-27, 610 N.W.2d 449, 455. This Court concluded that there was “substantial evidence to support the determinations of the hearing examiner and the Department that [claimant] was not a credible witness and, thus, her subjective testimony as to pain could also be determined not to be credible.” Id. at ¶ 26. The hearing examiner found that there was evidence that claimant was malingering, that there was a discrepancy between claimant’s injury and the objective findings, that claimant failed to comply with her prescribed treatment, and that her testimony at the hearing conflicted with statements made at earlier dates. Id. at ¶¶ 27-33. Because of the substantial evidence in the record, this Court stated that the hearing examiner was correct in rejecting the expert opinions of five doctors who supported the claimant’s complaints of injury. Id. at ¶ 25. This Court agreed “with the hearing examiner’s finding that since [claimant] was lacking in credibility and because ‘the opinions of [claimant’s] expert witnesses regarding her condition were based in large part on what she told them, the opinions of those experts lack an adequate foundation.’ ” Id.

[¶ 27.] Again, the Johnson case is clearly distinguishable from the one at hand. The hearing examiner’s determination that Davidson is incredible is not supported by substantial evidence. Furthermore, the opinions of Davidson’s experts were not based merely on Davidson’s complaints of pain and cannot be said to lack an adequate foundation. Because the Department does not support its determination that Davidson’s testimony is incredible, it cannot justifiably reject the expert opinions of numerous doctors in favor of one hired by the insurer under these circumstances.

[¶ 28.] The burden of proof in workers’ compensation cases lies with the claimant. The “ ‘claimant has the burden of proving all facts essential to compensation[.]’ ” Phillips v. John Morrell & Co., 484 N.W.2d 527, 530 (S.D.1992) (quoting King v. Johnson Bros. Constr. Co., 83 S.D. 69, 73, 155 N.W.2d 183, 185 (1967)). This Court has stated that:

Having recognized the burden of proving all the essential facts of his claim is on the claimant, it becomes necessary to evaluate the evidence to determine whether the claimant has in fact met this burden. It should be noted proof need not arise to a degree of absolute certainty, but an award may not be based upon mere possibility or speculative evidence.

Foltz, 516 N.W.2d at 342 (citing Mehlum v. Nunda Coop. Ass’n, 74 S.D. 545, 546, 56 N.W.2d 282, 283 (1952)). Expert medical testimony couched in terms of probability is sufficient to sustain a workers’ compensation claimant’s burden of proof. Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 15, 558 N.W.2d 76, 80.

[¶ 29.] Davidson presented evidence to prove facts essential to compensation under workers’ compensation law. The Department erred when it ignored this evidence. We conclude for all of the reasons stated above that Davidson was denied a fair hearing. Because Davidson has made a prima facie showing, the burden now shifts to the employer to show that some form of suitable work is regularly and continuously available to the claimant. See Kester v. Colonial Manor of Custer, 1997 SD 127, ¶¶ 28-30, 571 N.W.2d 376, 381 (holding that after claimant establishes prima face case of disability, the burden shifts to the employer to show that some suitable work is available). Accordingly, we reverse and remand for proceedings consistent with this opinion.

[¶ 30.] GILBERTSON, Chief Justice, and GORS, Acting Justice, concur.

[f 31.] AMUNDSON and KONENKAMP, Justices, dissent.

AMUNDSON, Justice

(dissenting).

[¶ 32.] It is clear from this Court’s precedent that due regard should be given to a fact finder’s credibility determination, and we should respect the opinions of those who have seen, firsthand, the demeanor of witnesses. See Schneider, 2001 SD 70 at ¶ 14, 628 N.W.2d at 728; Johnson, 2000 SD 47, ¶ 22, 610 N.W.2d 449, 453-54; Mathis v. Mathis, 2000 SD 59, ¶ 11, 609 N.W.2d 773, 776; Belhassen, 2000 SD 82 at ¶ 17, 613 N.W.2d at 536; Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181; Kurtz v. SCI, 1998 SD 37, 576 N.W.2d 878, 882; Petersen v. Hinky Dinky, 515 N.W.2d 226, 235 (S.D.1994); Foltz, 516 N.W.2d at 347 (Amundson, J., dissenting), Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 270 (S.D.1989). Moreover, it is not this Court’s job to search for reasons to reverse a lower court’s decision. See S.D. Subsequent Injury Fund v. Cas. Reciprocal Exch., 1999 SD 2, ¶ 25, 589 N.W.2d 206, 211 (finding this Court should not search for reasons to reverse); Fenner v. Trimac Transp., Inc., 1996 SD 121, ¶ 15, 554 N.W.2d 485, 489 (stating “[w]e do not look for reasons to reverse, even if we would not have made a similar decision ... but confine our review to a determination of whether the record contains substantial evidence to support the agency’s decision”); Peterson v. Beck, 537 N.W.2d 375, 379 (S.D.1995) (finding this Court should not “search out” reasons for reversal, but rather, should confine its review to determine if there is evidence to support the lower court’s decision).

[¶ 33.] A review of the record in this case shows the following findings of fact entered by the administrative law judge:

11. After Dr. Quinlan examined Claimant, Employer and Insurer offered to have Claimant examined at the Mayo Clinic. Claimant refused that request.
15. Dr. Blow also recommended Claimant attend a pain clinic. Dr. Quinlan made a similar recommendation several months earlier. Claimant refused to attend a pain clinic even though Insurer offered to pay for the program.
17. Dr. Small referred Claimant to Dr. Philip Johnson, an orthopedic surgeon in Fargo, North Dakota. This referral was at the request of Claimant’s attorney. Dr. Small noted: “I have been in touch with [Claimant’s] attorney and he also wants a second opinion from an out of state physician.”
22. In May 1995, Dr. Quinlan was provided with a two-page analysis describing the duties for a job in the repair kit area. Dr. Quinlan approved the position for Claimant[. 0]n May 15, 1995, Claimant received a job offer from Employer to work in this position, but refused to return to work based on a note from Dr. Johnson.
24. Employer and Insurer arranged for Claimant to be seen at the Mayo Clinic in April 1996. Dr. Keith Bengt-son examined Claimant. That physical examination was totally normal except for a “slightly decreased” range of motion and tenderness of the right shoulder and neck. Dr. Bengtson diagnosed chronic right shoulder group myofascial pain syndrome. He suggested Claimant refrain from repetitive activity with the right upper extremity, but otherwise agreed with the FCE performed by Sioux Valley Hospital. On April 19, 1996, Dr. Bengtson wrote, “I agree that [Claimant] has reached maximum medical improvement. Her permanent partial disability would be 0% according to AMA guidelines.”
34. In addition, Dr. Tountas noted Claimant did not have any neck or upper back spasm. Dr. Tountas stated he expected Claimant’s “right arm to be small given the fact that she demonstrated limited motion with pain complaints and pain over a period of over two years.” Dr. Tountas explained:
Well, if the pain were of sufficient magnitude so that the patient can hardly use the upper extremity to any degree, then one would expect either visible atrophy — that is, you frequently can see wasting of muscles if you look at a hand or extremity — or if it’s a subtle change, then you should be able to measure it. And again, this is done by just taking a tape measure. And I’ve done this thousands of times. And you can compare one with the other and get an idea as to whether there is an atrophy or wasting of the muscle that would account for the inability to use it; that is, the disuse.
. However, in this case, Dr. Tountas did not find any evidence of atrophy as to Claimant’s right upper extremity.
36. Based on his examination, Dr. Tountas was unable to reach a diagnosis as to Claimant’s condition. Dr. Tountas opined “the objective findings do not support a diagnosis.” Dr. Tountas stated:
There may have been some references to [trigger points or muscle spasms], but I don’t find those to be consistent enough to explain this very bizarre, nonanatomic sensory deficit.... I also find that in FCEs, we do have a great deal of exaggerated pain behavior. There has been no objective testing for a diagnosis that can account for this much pain....
So I, therefore, feel that there are insufficient findings to make this a diagnosis which causes this much disability or any impairment or inability to work.
In fact, Dr. Tountas could not find any anatomical reason for Claimant’s pain complaints.
37. Employer again offered Claimant a job in the repair kit area. This position included receptionist duties and was within the restrictions set by the FCE done at the Mayo Clinic.
39 All the doctors agree that objective tests reveal nothing that can explain Claimant’s complaints of pain. Under SDCL -62-1-15, “evidence concerning any injury shall be given greater weight of supported by [sic] objective medical findings.” No such support exists here.
41. Employer presented surveillance videos showing Claimant engaged in certain activities. The videos show Claimant pulling weeds in her garden and at other times, carrying items with her right arm. Claimant is shown moving with ease and at no time does she appear to be in any physical discomfort.
42. In addition, when Claimant attempted to return to work on January 30,1997, in the repair kit area she was videotaped performing the duties of the job. Claimant was able to work at her own pace and moved with ease. Claimant did not show any outward signs of pain. Claimant was instructed that she should get up and move around every twenty minutes. Claimant testified that her return to work effort “didn’t go very well” and she had to leave after approximately forty minutes. It is impossible to accept Claimant’s testimony that she was experiencing such extreme pain after viewing the video.
43. Every physician who treated Claimant before Dr. Small, including three specialists, felt she was capable of working. Claimant then saw Dr. Small, who took her off work. Not only has Claimant not returned to work since, she has not returned to any of the doctors who said she could go back to work.
48. Claimant is not a credible Witness.

Despite the majority’s finding that the Johnson ease is distinguishable, I find it very much on point. As the findings of fact above demonstrate, there was “substantial evidence to support the determinations of the hearing examiner and the Department that [Davidson] ... was not a credible witness, and, thus, her subjective testimony as to pain could also be determined not credible[,]” just like in Johnson. 2000 SD 47 at ¶ 26, 610 N.W.2d at 455.

[¶ 34.] The majority, in part, bases its decision on the fact that Davidson presented medical testimony of “several doctors” who agree Davidson suffers from a pain syndrome. But, every physician who treated Davidson prior to Dr. Small, including three specialists, felt she was capable of working. Thus, we should not emphasize the number of experts acknowledging Davidson experienced pain; but rather, we should look at whether it incapacitated her. Furthermore, it is a “long-accepted premise ... that the purpose of expert testimony is to assist the trier of fact and not to supplant it.” Id. at ¶ 25. “Experts do not determine credibility.” Id. We should focus on whether the record “definitely and firmly” demonstrates that the Department has made a mistake. Belhassen, 2000 SD 82, ¶ 11, 613 N.W.2d 531, 535 (citation omitted). It has not. Further, the expert testimony reviewed in this case “cannot rise above its foundation.” Schneider, 2001 SD 70 at ¶ 16, 628 N.W.2d at 730 (quoting Johnson, 2000 SD 47 at ¶ 25, 610 N.W.2d at 455) (other citations omitted). “The value of the opinion of an expert witness is no better than the facts upon which they are based.” Id. The Department held that the facts fed to the medical experts originated from a non-credible source. Therefore, I cannot join the majority opinion which has sought out reasons to reverse an administrative decision that I feel is firmly supported by the record. This might be a case where I would personally have chosen a different decision, but that is not the purpose of appellate review.

[¶ 35.] KONENKAMP, Justice, joins this dissent.

      . There is some dispute as to the length of the examination. In his deposition, Dr. Tountas claimed that he saw Davidson for "at least 30 minutes.” At the hearing, Davidson testified that Dr. Tountas spent only 15-20 minutes with her, and only 5-10 minutes on the physical exam.

      . In fact, when reviewing these tapes, other than the retum-to-work video, the Court was only able to find one instance where Davidson was seen using her right arm. The majority of the tapes showed only panoramic views of Davidson's house, car and garden.


source: Caselaw Access Project

author:
GILBERTSON, Chief Justice.
      SABERS, Justice

license: Public Domain

text:
    2002 SD 32
    TRI COUNTY LANDFILL ASSOCIATION, INC, Plaintiff and Appellant, v. BRULE COUNTY, Defendant and Appellee.
    No. 22012, 22019.
    Supreme Court of South Dakota.
    Argued Jan. 10, 2002.
    Decided March 6, 2002.
    Rehearing Denied April 16, 2002.

      Robert R. Schaub of Larson, Sundall, Larson, Schaub and Fox, Chamberlain, for plaintiff and appellant.
    Sheila S. Woodward, Steven M. Johnson, A. Russell Janklow of Johnson, Heide-priem, Miner, Marlow & Janklow, Yankton & Sioux Falls, for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Brule County (County) sold Tri County Landfill Association, Inc. (Landfill), 40 acres of land to develop a regional solid waste facility. Landfill received tentative approval from the Department of Environment and Natural Resources (DENR), but the Board of Minerals and Environment (BME) denied the permit pending a resolution by County re-approving the landfill. County refused and Landfill sued for damages under 42 USC § 1983. Landfill now appeals the trial court’s granting of summary judgment upon a determination that, while County’s denial of the permit was arbitrary and capricious, it was not “truly irrational” and was therefore insufficient to sustain a substantive due process claim. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Landfill was formed in 1992 as a non-profit corporation to develop, construct, and maintain a regional solid waste facility in Brule County, South Dakota. Landfill members are county and municipal governmental bodies exercising joint power agreements, and Landfill’s voting delegates are officials of the member counties and cities. County became a member of Landfill in 1992 and subsequently sold forty acres to Landfill for development of the solid waste facility. On April 27, 1993, County’s zoning board granted Landfill a special exception necessary to construct the solid waste facility on the property. Landfill then filed a permit application with DENR, which was tentatively approved on July 29,1993.

[¶ 3.] On August 26, 1993, Clifford Lantz (Lantz), an adjoining landowner and resident of County, filed a contested case petition and a request for a hearing. The hearing was held on January 19, 1994, and BME announced its conclusion a month later. BME determined that Landfill had complied with South Dakota’s regulations, but it had failed to obtain County’s approval within six months prior to BME’s approval, as required by SDCL 34A-6-103. Therefore, issuance of Landfill’s permit was postponed pending re-approval by County.

[¶ 4.] A change in the County Commission’s membership resulted in a denial of Landfill’s request. Landfill was unable to garner the majority vote necessary to gain approval. Landfill appealed this denial to the circuit court, which determined County’s actions to be “arbitrary and capricious.” On appeal to this Court in Tri County /, we affirmed the circuit court’s decision and ordered County to reissue the permit approval to Landfill. The facility eventually opened on November 4, 1996.

[¶ 5.] On June 20, 1994, Landfill sued County under 42 USC § 1983 for a violation of substantive due process. County moved to dismiss and, in the alternative, moved for summary judgment. Landfill moved for partial summary judgment on the issue of liability. The trial court granted Landfill’s motion and the trial went forward on the issue of damages. Landfill was awarded $628,428.03 in damages, prejudgment interest, attorney’s fees and costs.

[¶ 6.] On appeal to this Court in Tri County II, we reversed the trial court’s determination that County’s “arbitrary and capricious” violation of state law automatically amounted to a violation of substantive due process. We remanded the action for a factual determination of whether County’s conduct was “truly irrational” in order to sustain Landfill’s § 1983 claim and whether Landfill had a protected property interest in the approved permit.

[¶ 7.] On remand, the trial court determined that County was exercising a discretionary function under SDCL 34A-6-103, which eliminated any protected property interest. The court also determined that, in drawing all inferences in favor of Landfill, County’s conduct was not truly irrational because there was sufficient evidence to indicate “a conceivable rational relationship between the denial of the permit and a legitimate governmental interest.” Finally, the court denied County’s application for costs under SDCL 15-17-37.

[¶ 8.] Landfill now appeals, asking that the trial court’s summary judgment in favor of County be reversed and instead, granted in favor of Landfill. In oral argument, Landfill conceded that no genuine issue of material fact remained and that the only remaining issues were legal conclusions to be drawn from uncontested facts. Therefore, Landfill raises the following issues:

1. Whether Landfill possesses a protected property interest in the approved permit.
2. Whether County’s conduct, in denying re-approval of the solid waste facility, was “truly irrational” and in violation of substantive due process.

County, through notice of review, presents only one issue for appeal:

1. Whether the trial court abused its discretion in denying County’s claim for costs and disbursements in the amount of $14,771.26.

STANDARD OF REVIEW

[¶ 9.] Our standard of review for summary judgment is well settled.

Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.”

Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶8, 610 N.W.2d 787, 792 (quoting SDCL 15—6—56(c)) (additional citations omitted). As neither party now argues that questions of fact remain, a prevailing party must show the facts entitle it to summary judgment as a matter of law.

ANALYSIS AND DECISION

[¶ 10.] Landfill seeks relief under 42 USC § 1983 for due process violations. “The due process clause of the Fourteenth Amendment prohibits state governments from depriving ‘any person of life, liberty or property, without due process of the law ....’” Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir.2001) (quoting USConst amend XIV, § 1). This protection may be split into its two counterparts, procedural due process and substantive due process. Id. A violation of substantive due process occurs when “certain types of governmental acts [violate] the Due Process Clause regardless of the procedures used to implement them.” Tri County II, 2000 SD 148 at ¶ 14, 619 N.W.2d at 668 (citations omitted). Landfill alleges that County’s refusal to re-approve the placement of the solid waste facility in County, while Landfill remained in compliance with the appropriate state regulations, was a violation of Landfill’s right to substantive due process.

[¶ 11.] In order to maintain a cause of action under 42 USC § 1983, the plaintiff must show: (1) that the defendant acted under color of state law; and (2) that the defendant deprived the plaintiff of a constitutionally protected property right or interest. See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2708, 33 L.Ed.2d 548, 561 (1972); Bituminous Materials, Inc. v. Rice County, Minn., 126 F.3d 1068, 1070 (8th Cir.1997); Tri County II, 2000 SD 148 at ¶ 10, 619 N.W.2d at 667 (citations omitted). In the context of a zoning or land-use dispute, the plaintiff must go one step further to show that the “government action was ‘sufficiently outrageous’ or ‘truly irrational, that is, something more than ... arbitrary, capricious, or in violation of state law.’” Young, 244 F.3d at 628 (quoting Anderson v. Douglas County, 4 F.3d 574, 577 (8th Cir.1993)) (additional citations omitted). Because the parties do not dispute that County acted under color of state law, our focus is upon determining the presence or absence of a protected property interest and truly irrational conduct, given the uncontested facts.

[¶ 12.] 1. Whether Landfill possesses a protected property interest in the approved permit.

[¶ 13.] Analysis of a substantive due process claim “must begin with an examination of the interest allegedly violated.” Young, 244 F.3d at 627 (citing Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 444-46 (8th Cir.1995)). See also SDDS, Inc. v. State of SD, 994 F.2d 486, 491 (8th Cir.1993) (recognizing determination of plaintiffs protected property rights is threshold issue). In Tri County II, this Court stated that, in order to demonstrate it held a protected property interest, Landfill must show that County did not have the discretion to deny its permission, despite Landfill’s failure to meet the six-month deadline requirement. 2000 SD 148 at ¶ 29, 619 N.W.2d at 674. In other words, Landfill must demonstrate that it had a clear entitlement to the permit. Id.

[¶ 14.] Landfill claims that so long as it remained in compliance with South Dakota regulations, County could not withhold its approval. Yet, Landfill overlooks one regulation that it was not in compliance with — the deadline provision of SDCL 34A-6-103. Projects inevitably change over time, as was evidenced by the record in this case. The Legislature intentionally built in this deadline requirement to ensure that the project presented to BME not only remained in compliance with South Dakota safety and health standards, but that it also remained consistent with the concept originally approved by the county.

[¶ 15.] County relies on SDCL 34A-6-103 to establish its discretion to deny re-approval of the project and thereby negate any protected property interest in the permit. SDCL 34A-6-103 provides:

Any application to the Board of Minerals and Environment for a permit for a facility for the transportation, storage or disposal of solid waste or medical waste pursuant to this chapter shall include a resolution by the governing body of the county in which the facility is to be located approving the proposed facility. Approval by the county within no more than six months before the issuance of the permit by the Board of Minerals and Environment shall be considered as a condition for the issuance of the permit.

(emphasis added). The plain language of the statute clearly indicates that any prior approval lapses after the passage of six months. Accordingly, the applicant would be expected to again seek county approval before receiving the permit from BME.

[¶ 16.] It follows then, that because County had the discretion to approve or disapprove the project under SDCL 34A-6-103, even after prior approval had been given, Landfill had no clear entitlement to, or protected property interest in the permit. “The fact that the permit could have been denied on non-arbitrary grounds defeats the federal due process claim.” RRI Realty v. Inc. Village of Southampton, 870 F.2d 911, 918 (2nd Cir.1989). See also Bituminous Materials, 126 F.3d at 1070 (stating “holder of a land use permit has a property interest if a state law or regulation limits the issuing authority’s discretion to restrict or revoke the permit by requiring that the permit issue upon compliance with terms and conditions prescribed by statute or ordinance.”) (emphasis in original); Villager Pond, Inc. v. Town of Darien, 56 F.3d 375 (2nd Cir.1995) (stating “a constitutionally protected property interest exists only when ‘the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured.’”). While County’s denial of the permit may have been legally unjustified (i.e., arbitrary and capricious), that is not the standard. The question is whether County had the discretion at all, and not whether that discretion was arbitrarily exercised. Upon remand, Landfill failed to demonstrate such a limitation on County’s power that approval was guaranteed.

[¶ 17.] Landfill also asserts that because County had previously approved the permit, any discretion provided in SDCL 34A-6-103 was eliminated and County should be bound by the previous commission’s decision. But, “prior approval from the current County’s predecessor does not bind the County to automatically approve Landfill’s proposal.” Tri County II, 2000 SD 148 at ¶ 28, 619 N.W.2d at 674. Landfill does not dispute that the composition of the County Commission was legally changed through the political process. A different decision hardly seems unreasonable or unexpected, given the significant public opposition raised and the inherently political nature of the permitting process.

[¶ 18.] 2. Whether County’s conduct, in denying re-approval of the solid waste facility, was “truly irrational” and in violation of substantive due process.

[¶ 19.] In Tri County II, this Court held that County’s denial of re-approval, though arbitrary and capricious, was not automatically a violation of substantive due process. 2000 SD 148 at ¶ 43, 619 N.W.2d at 676. In order to sustain a substantive due process claim based upon a zoning or land-use dispute, the challenger must show that the agency’s conduct was “truly irrational.” Id. Thus, even if Landfill could establish a protected property interest in the permit, Landfill is still required to show that County’s denial of re-approval was truly irrational.

[¶20.] While “truly irrational” conduct has not been defined by this Court, the Eighth Circuit has addressed the issue at length. For example, in Chesterfield Development Corporation v. City of Chesterfield, the court described an example of truly irrational conduct as “attempting to apply a zoning ordinance only to persons whose names begin with a letter in the first half of the alphabet.” 963 F.2d 1102, 1103-04 (8th Cir.1992) (denying substantive due process claim of developer who claimed he was deprived of property by city’s enforcement of invalid zoning law). In Lemke v. Cass County, Nebraska, one judge described truly irrational conduct as “a zoning board’s decision made by flipping a coin.” 846 F.2d 469, 472 (8th Cir.1987) (Arnold, J., concurring) (holding denial of rezoning application for solid waste facility, after county commissioners had previously approved the project, was not truly irrational). The court has also stated what is not truly irrational conduct. In WMX Technologies, Inc. v. Gasconade County, Missouri, the court held that passing a solid waste management ordinance in violation of state law, without legitimate scientific evidence and in response solely to public opposition, was not truly irrational. 105 F.3d 1195 (8th Cir.1997). See also L.C. Dev. Co., Inc. v. Lincoln County, 996 F.Supp. 886 (E.D.Mo.1998) (holding landfill regulation passed in violation of state law not truly irrational); Crooked Lake Dev., Inc. v. Emmet County, 763 F.Supp. 1398 (W.D.Mich.1991) (holding bad faith rezoning in violation of state law is not truly irrational).

[¶ 21.] As found by the trial court, the commissioners have consistently testified to their reasons for denying re-approval:

The [c]ommissioners testified that they were concerned about whether out[-]of[-]state garbage would be allowed at the landfill; that a majority of the commissioners wanted a compost facility [instead of a solid waste facility]; that some of the new commissioners objected to [the] location of the landfill and the size of the “pile.” Additionally, [the][c]ommissioners testified from the very first [that] they were concerned about the loss of “local control” and the fact that the size of the project changed from time to time — seemingly growing bigger as time went on.

These reasons may be irrelevant in determining whether County’s conduct was arbitrary and capricious. But they are, nonetheless, legitimate concerns and not truly irrational.

[¶ 22.] Landfill also contends that it has a substantive due process claim because of the ill will and personal bias of the commissioners toward Landfill. Yet, the obvious evidentiary proof problems aside, ill will and personal bias alone are not enough to rise to the level of a substantive due process claim. Bituminous Materials, 126 F.3d at 1071.

[I]t would be inconsistent with the high threshold we established in Chesterfield to hold that a substantive due process claimant will survive summary judgment by alleging that a land use planning decisionmaker does not like the plaintiff. That sort of inquiry would indeed turn the federal courts into zoning boards of appeal.

Id.

[¶23.] While we recognize that “there may be cases where land-use decisions are ‘so corrupted by the personal motives of local government officials that due process rights are implicated,’ ” this is not such a case. Iowa Coal Mining Co., Inc. v. Monroe County, Iowa, 257 F.3d 846, 853 (quoting Bituminous Materials, 126 F.3d at 1071). For example, in Wilkerson v. Johnson, the decisionmaker denied the plaintiff’s barbershop license solely for the purpose of protecting himself against competition, thus undermining the credibility of the governing process. 699 F.2d 325, 328-29 (6th Cir.1983). Herein, the trial court concluded:

After two trials and numerous depositions and hearings, it remains impossible to determine how and why ill will developed between the commissioners and Mr. McManus, [the manager of Landfill.] It is impossible to determine who is primarily at fault. It is impossible to determine the depth of this ill will or its impact on the County’s May 3, 1994 decision. Thus, as in Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068,1071 (8th Cir.1997), I conclude that this allegation is far too insubstantial to support a substantive due process claim.

Landfill has not presented sufficient evidence of the sort of “corruption by personal motives” necessary to support a substantive due process claim.

[¶ 24.] Landfill further alleges that County’s decision was merely a reaction to the opposition of over 400 private citizens, which arose after Landfill’s application to BME. In Lemke, the petitioners alleged that the county zoning board’s refusal to change the zoning ordinance to allow for solid waste disposal, in light of the county commission’s previous approval, was a violation of substantive due process because the decision was based on public opposition. 846 F.2d at 470. Judge Arnold responded:

Such a claim is easily made in every zoning case, and is the stuff of which state administrative law is made. The state courts are open to hear, and do hear, such claims routinely. I see no reason to read the Due Process Clause as a constitutionalized Administrative Procedure Act setting up the federal courts as a forum for the review of every run-of-the-mill land-use dispute. In the present case, plaintiffs’ theory is that their application was denied “mostly because the citizens [of Cass County] were offended by the transporting of Omaha, Douglas County, garbage into [a] Cass County landfill_” That sort of xenophobic, anti-big-city motivation could, I am sure, often be credibly charged as to land-use decisions. It may amount to arbitrary or capricious decision making for purposes of state administrative law. * ⅜ * But it is far from irrational.

Id. at 472 (internal citation omitted). We recognize that County arbitrarily exercised its governmental power, but we cannot say that the action was baseless. A response by elected officials to political pressure and public opposition by its electorate is not truly irrational conduct.

[¶ 25.] 3. Whether the trial court abused its discretion in denying County’s claim for costs and disbursements in the amount of $14,-771.26.

[¶ 26.] County applied to the circuit court for costs and disbursements under SDCL 15-17-37, which provides:

The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter’s attendance fees, court appointed experts and other similar expenses and charges. These expenditures are termed “disbursements” and are taxed pursuant to § 15 — 6—54(d).

(emphasis added). The award of such disbursements is made at the discretion of the court. Ridley v. Lawrence County Comm’n, 2000 SD 143, ¶ 12, 619 N.W.2d 254, 259; Michlitsch v. Meyer, 1999 SD 69, ¶ 15, 594 N.W.2d 731, 733 (citing SDCL 15-17-52, SDCL 15-17-53). Thus, we review the court’s denial of these costs under the abuse of discretion standard. Zahn v. Musick, 2000 SD 26, ¶ 50, 605 N.W.2d 823, 833 (citing High Plains Genetics Research, Inc. v. JK Mill-Iron Ranch, 535 N.W.2d 839, 846 (S.D.1995)).

[¶ 27.] The circuit court denied County’s application for two reasons. First, approximately one third of County’s application was attempting to recover costs of the litigation in Tri County I, a case in which it did not prevail and was not entitled to reimbursement. 535 N.W.2d at 765. Second, County was not the innocent party in this case, in that its arbitrary and capricious denial of the permit was the cause of the entire lawsuit. Id. We find the court’s reasoning to be soundly supported by the record. See Michlitsch, 1999 SD 69 at ¶ 12, 594 N.W.2d at 734 (denying costs to non-innocent party was not an abuse of discretion). ‘We cannot say that the trial court’s denial was clearly against reason and evidence or that a judicial mind, in view of the law and circumstances, could not have reasonably reached the same conclusion.” Id. Therefore, the denial of costs and disbursements in this case was not an abuse of discretion.

[¶ 28.] We affirm.

[¶ 29.] AMUNDSON and KONENKAMP, Justices, and, GORS, Acting Justice, concur.

[¶ 30.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 31.] One might have no real problem with this decision IF the judge held a trial, listened to the evidence, determined credibility of the witnesses, considered the arguments and briefs of counsel, and impartially decided the case on the facts. But, for the judge to jump the gun and decide this case on summary judgment without a trial is simply dead wrong.

[¶ 32.] The summary judgment decision of the judge without a trial violates our remand instructions, which were, as stated in the majority opinion at ¶ 6:

We remanded the action for a factual determination of whether County’s conduct was “truly irrational” in order to sustain Landfill’s § 1983 claim and whether Landfill had a protected property interest in the approved permit.

It seems incredible that the judge jumped the gun legally in Tri County II and jumped the gun again factually in Tri County III. We should send it back until it is done right both factually and legally.

[¶ 33.] As stated in my writing in Tri County II, 2000 SD 148 at ¶¶ 44-46, 619 N.W.2d at 676 (Sabers, J., concurring specially in part and dissenting in part):

The facts underlying our holding in Tri County I must rise to the level of the “truly irrational” standard and not merely an arbitrary and capricious action to create liability for the County in a § 1983 claim. Yet that does not mean our determination in Tri County I that the actions of the County were arbitrary and capricious negates the possibility of such a showing. In fact, they substantially support it.
A County is bound by the actions of its duly elected commissioners. See McQuillin, Municipal Corporations § 26.81.20 (3d ed. 1995) (discussing the validity of subsequent actions by commissioners). Therefore, a subsequent reversal of a prior decision by newly elected commissioners is clearly wrong, “arbitrary and capricious.” These facts under Chesterfield go a long way to “give rise to a violation of rights secured by the Constitution,” even if it does not do so “automatically.” See Chesterfield, 963 F.2d at 1104. Therefore, even if not “automatically” “truly irrational” and subject to summary judgment by the court, it is prima facie evidence for the trial court in this case.
Therefore, to show that a protected property interest exists, it is only necessary for Tri County Landfill to show “a lack of discretion on the part [of Brule County to deny the issuance of the permit].” See Villager Pond, Inc., 56 F.3d at 379. The majority’s statement that “[p]rior decisions from an elected official’s successor in no way binds the elected official currently occupying the elected position” is wrong. While it is beyond dispute that incoming officials can change “policies, procedures, and even key personnel of their predecessors ... and implement their own policies” they cannot ignore a constitutionally protected property interest if it is found to exist. On remand, this is part and parcel of the factual questions to be determined by the court.

[¶ 34.] How in the world can the judge determine whether the actions of Brule County (and especially those of the newly elected commissioners) were “truly irrational” without making determinations of credibility, motive and intent?

[¶35.] We should reverse and remand for a fair trial.

      . -Prior to the hearing, County withdrew its membership in Landfill.

      . SDCL 34A-6-103 has since been amended to require county approval within twenty-four months of BME's approval, rather than six months. See 1996 S.D. Sess.L. ch. 220 § 1.

      . Tri County Landfill Ass'n, Inc. v. Brule County, 535 N.W.2d 760 (S.D.1995).

      . Tri County Landfill Ass’n, Inc. v. Brule County, 2000 SD 148, 619 N.W.2d 663.

      . Landfill raised the issue of whether SDCL 34A-6-103 is unconstitutional in Tri County II, 2000 SD 148 at ¶ 8, 619 N.W.2d at 666. Landfill alleged that the statute is unconstitutional in that it affords too much discretion to County in approving or denying permits because it contains no specific guidelines. We considered this issue in Tri County II and found it to be without merit. Id. at ¶ 38.

      . Finally, Landfill's concession on oral argument that no genuine issues of material fact remained and that the only remaining issues were legal conclusions to be drawn from uncontested facts is clearly wrong because of issues of credibility, motive and intent.


author: STREIT, J.

text:
    In re the MARRIAGE OF Samnieng Rose MARTIN and Joseph H. Martin. Upon the Petition of Samnieng Rose Martin, Petitioner-Appellee, And Concerning Joseph H. Martin, Respondent-Appellant.
    No. 00-1629.
    Court of Appeals of Iowa.
    June 13, 2001.
    Karen A. Taylor of the Law Offices of Taylor & Ristau, Des Moines, for appellant.
    David P. Odekirk of Dunakey & Klatt, P.C., Waterloo, for appellee.
    Considered by SACKETT, C.J., and HUITINK and STREIT, JJ.
   STREIT, J.

Two former spouses dispute whether a provision in the decree dissolving their marriage constitutes an alimony award or a division of property. We reverse the district court’s order dismissing the ex-husband’s petition for modification and remand for further proceedings.

I.Background Facts & Proceedings.

Joseph and Samnieng Martin’s eighteen-year marriage was dissolved in September 1986. The dissolution decree included the following provision:

[Joseph] shall pay alimony to [Sam-nieng] ... in a sum equal to one-third of his pension benefits from the John Deere Company, to commence when [he] begins receiving such benefits. Alimony shall cease upon the death of either party, or upon [Samnieng’s] remarriage.

In October 1986 Samnieng appealed, claiming this alimony award was inadequate because she had to wait seven to twenty-one years from the date of the dissolution decree to receive any spousal support. This court affirmed the dissolution decree as modified:

[A]limony should have been awarded during the period prior to Joseph’s receipt of his pension.... Joseph should pay Samnieng $200 in spousal support .... When Joseph begins receiving his pension benefits, the amount will increase or decrease to one-third of his pension benefits in accordance with the trial court’s decree.

In re Marriage of Martin, No. 86-1590, 428 N.W.2d 318 (Iowa Ct.App.1988).

In February 1999 Joseph requested the dissolution decree be modified to terminate or reduce his alimony obligation. Sam-nieng, in turn, applied for an adjudication of law points pursuant to Iowa Rule of Civil Procedure 116. She argued the dissolution decree’s alimony award was actually a part of the decree’s division of property and thus cannot be modified. The district court agreed and dismissed Joseph’s petition for modification. Joseph appeals.

II. Standard of Review.

An adjudication of law points is confined to a determination of legal matters on uncontroverted pleadings. Iowa R. Civ. P. 116; Mortensen v. Heritage Mut. Ins. Co., 590 N.W.2d 35, 38 (Iowa 1999). Our review is for a correction of errors at law. Mortensen, 590 N.W.2d at 38; In re Marriage of Gallagher, 539 N.W.2d 479, 480 (Iowa 1995).

III. The Merits.

Joseph and Samnieng dispute the legal implications of the dissolution decree provision requiring Joseph to “pay alimony to [Samnieng] ... in a sum equal to one-third of his pension benefits from the John Deere Company, to commence when [he] begins receiving such benefits.” Joseph argues the provision sets forth his alimony obligation and thus can be modified. See Iowa Code § 598.21(8) (1997) (“[T]he court may subsequently modify orders made under this section when there is a substantial change in circumstances.”). Samnieng counters the provision establishes how a portion of the parties’ property should be divided and thus cannot be modified. See Iowa Code § 598.21(11) (1997) (“Property divisions made under this chapter are not subject to modification.”).

As Samnieng correctly observes, pension benefits are a form of property. See, e.g., In re Marriage of Bevers, 326 N.W.2d 896, 900 (Iowa 1982); In re Marriage of Wilson, 449 N.W.2d 890, 892 (Iowa Ct.App.1989); In re Marriage of Jensen, 396 N.W.2d 367, 369 (Iowa Ct.App.1986); In re Marriage of Byall, 353 N.W.2d 103, 106 (Iowa Ct.App.1984). Accordingly, if the district court intended to distribute a portion of Joseph’s pension benefits to Samnieng via the aforementioned provision, it should not have used the term “alimony.” See Wilson, 449 N.W.2d at 892. However, if the court intended to award Samnieng spousal support and merely fixed the amount of Joseph’s support obligation by referencing his pension benefits, its use of the term “alimony” was appropriate. We ascertain the court’s intent from the decree and other proper evidence. Cf. In re Marriage of Ruter, 564 N.W.2d 849, 851 (Iowa Ct.App.1997).

The court apparently intended to award Samnieng alimony. The court used the term “alimony” to describe the nature of Joseph’s obligation to Samnieng. Its use of this term is not conclusive. See In re Marriage of Von Gian, 525 N.W.2d 427, 430 (Iowa Ct.App.1994). However, the court also stated Joseph’s obligation would “cease upon the death of either party, or upon [Samnieng’s] remarriage.” Such termination conditions generally apply to payments that must be made pursuant to an alimony award, not those that must be made pursuant to a division of property. See, e.g., In re Marriage of Harvey, 393 N.W.2d 312, 314 (Iowa 1986); Von Gian, 525 N.W.2d at 430; In re Marriage of Woodward, 426 N.W.2d 668, 671 (Iowa Ct.App.1988). Moreover, the court explicitly noted it was imposing Joseph’s obligation pursuant to section 598.21(3) of the Iowa Code. Section 598.21(3) provides upon every judgment of dissolution a “court may grant an order requiring support payments to either party for a limited or indefinite length of time.” Iowa Code § 598.21(3) (1985) (emphasis added). Finally, the court stated Joseph had to pay Samnieng alimony “in a sum equal to one-third of his pension benefits.” It did not require Joseph to pay this sum directly from his pension benefits. Nor did it require this sum to be assigned to Samnieng by a qualified domestic relations order. See Retirement Equity Act of 1984, Pub.L. No. 98-397, § 104, 98 Stat. 1426, 1433-36 (codified at 29 U.S.C. § 1056(d)(3)). This option was available to the court as of January 1, 1985. See id. § 303(d), 98 Stat. 1426, 1453.

We thus conclude the court intended to award Samnieng alimony rather than to distribute Joseph’s pension benefits. In reaching this conclusion, we have not overlooked the fact the court did not include a provision in the dissolution decree explicitly awarding Joseph all of his pension benefits. Joseph owned these benefits when the court entered the decree. The absence of any specific reference to the benefits left title to them undisturbed. See Ruter, 564 N.W.2d at 851.

Because the disputed dissolution decree provision constitutes an alimony award, it can be modified if Joseph proves the requisite change in circumstances. See Iowa Code § 598.21(8) (1997); see also, e.g., In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). We take no position as to the merits of the petition to modify. We reverse the district court’s dismissal order and remand for further proceedings. We do not retain jurisdiction.

REVERSED AND REMANDED.

      . In the litigation prior to the matter currently on appeal, Samnieng consistently characterized the disputed dissolution decree provision as an alimony award.


author: VOGEL, P.J.

text:
    James SEREDA, Appellant, v. THE ZONING BOARD OF ADJUSTMENT, CITY OF BURLINGTON, Appellee.
    No. 00-0748.
    Court of Appeals of Iowa.
    June 29, 2001.
    Andrew S. Hoth of Hoth Law Offices, Burlington, for appellant.
    Wm. Scott Power and Melinda S. Hent-zel of Aspelmeier, Fisch, Power, Warner & Engberg, P.L.C., Burlington, for appellee.
    Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ. MILLER, J. takes no part.
   VOGEL, P.J.

James Sereda’s request for a conditional use permit was denied by the Zoning Board of Adjustment for the City of Burlington. He sought a writ of certiorari, which the district court sustained, remanding the case back for further proceedings. After another hearing and denial of the permit, Sereda moved the district court for further proceedings on the original writ. The district court, finding it had no retained jurisdiction, denied Sereda’s motion. We agree with the district court and affirm.

Background Facts and Proceedings. James Sereda filed an application for a conditional or special use permit with the City of Burlington, to construct a short wave radio tower on his residential property. The application was denied by the city’s Zoning Board of Adjustment [Board]. Sereda was granted a rehearing, and the Board once again denied his request, but provided no written findings or reasons in support of its denial. Sereda then filed a petition for a writ of certiorari, which was sustained by the district court.

Determining that the lack of written factual findings rendered the Board’s decision unreasonable and arbitrary, and therefore illegal, the court reversed the decision and remanded the matter to the Board for further proceedings consistent with its ruling:

The Court concludes that this matter should be remanded to the Board of Adjustment for a decision on Mr. Sere-da’s petition for a special use permit, based on the existing record or the existing record together with such additional evidence as Mr. Sereda and the city of Burlington may agree to present to the Board of Adjustment. The Board of Adjustment should then make written findings of fact on all issues presented, with such written findings to be sufficient to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the Board acts. In remanding this case the Court makes no suggestion whatsoever as to what the Board of Adjustment’s decision on the merits should be.

The further proceedings were conditioned, however, upon Sereda requesting such proceedings within fifteen days. The ruling stated that if Sereda failed to make a timely demand, his application for the special use permit would be deemed withdrawn.

At Sereda’s request a third hearing was held, and the Board once again denied his application, this time passing a resolution that set forth the reasons for the denial. Sereda then filed a request for further district court proceedings on the sustained writ. He argued the Board’s third denial was inconsistent with the district court’s prior ruling, and contended the court had retained jurisdiction to review whether the Board’s decision was in compliance with that ruling. The district court denied Sereda’s request, declaring the Board had complied with the directions upon remand, as it had issued written findings, and that with this compliance, any and all matters pertaining to the original writ were concluded. The court determined it had no jurisdiction to reach the merits of the Board’s written findings, ruling that the appropriate remedy to challenge the third denial was the filing of a new writ of certiorari.

Scope of Review. We review the district court’s ruling for corrections of errors at law. Iowa R.App.P. 4; Iowa R.Civ.P. 318.

Jurisdiction over the Original Writ. Although Sereda did not request that the district court retain jurisdiction over the original writ, he contends such jurisdiction was in fact retained in the court’s initial ruling. In effect, he argues the district court engaged in a limited remand, rather than a remand for further proceedings. In a limited remand a reviewing court retains jurisdiction over the proceedings so that it might evaluate the directed actions of the lower court or tribunal. See Bugely v. State, 464 N.W.2d 878, 880 (Iowa 1991). By contrast, all jurisdiction is lost in a remand for further proceedings, and a dissatisfied party can seek redress only by filing a new application, writ or appeal. See id. at 880-81.

The district court’s initial ruling arguably contains language indicative of a limited remand, in that it contemplates a possible review of any subsequent decision by the Board. It does not indicate, however, that such review would be conducted under the original writ. More importantly, the court specifically remanded “for further proceedings,” and those proceedings were not mandatory, but rather at the discretion of Sereda. Taken as a whole, the ruling demonstrates a remand to the Board, and relinquishment of jurisdiction over the matter.

Moreover, nothing in Iowa Code Chapter 414 or Iowa Rule of Civil Procedure 306, et seq., which govern writs of certiora-ri from municipal zoning decisions, contemplates retained jurisdiction. Cf. Reiter v. Iowa Department of Job Service, 327 N.W.2d 763 (Iowa Ct.App.1982) (discussing Iowa Code Chapter 17A and its authorization of a limited remand). The district court may affirm, reverse or modify the decision of a zoning board, Iowa Code § 414.18 (1999), and may set down “the manner in which either party may proceed further.” Iowa R.Civ.P. 316. We determine this latter authorization contemplates a remand for further proceedings, not a limited remand with retained jurisdiction.

Such a constraint on the court’s authority comports with the underlying rationale of a remand for further proceedings and the attendant relinquishment of jurisdiction. Retaining jurisdiction to review the general merits of a subsequent judgment runs the risk of either rendering the retained jurisdiction meaningless, or inappropriately restricting the decision-making power of the board or tribunal. As noted in State v. Luedtke, 279 N.W.2d 7 (Iowa 1979):

This matter is remanded to the Board of Adjustment for further proceedings consistent with this ruling, if within 15 days of the date of this ruling the Petitioner Mr. Sereda requests such further proceedings; if he does not his petition for a special use permit will be deemed withdrawn... .
The remand might result in no subsequent appeal; if it does, the new ... record will likely result in some change in the issues now before us. Furthermore, to remand for statement of reasons presupposes that the trial court will reach the same result ..., while it is possible that a trial court, in enunciating the reasons for the disposition, might feel inclined to reach a different result. We should allow enough latitude to do so if it appears to be justified.

Luedtke, 279 N.W.2d at 8.

In this case the Board, upon remand, could have ruled in Sereda’s favor. Had that occurred, the jurisdiction retained by the district court would have been rendered meaningless. We therefore agree with the district court’s conclusion it had not retained jurisdiction and had no legal basis, under the original writ, to review the Board’s decision.

If Sereda was dissatisfied with the Board’s third ruling, his recourse was the filing of a new writ of certiorari. Although timely informed of the Board’s third denial, Sereda neither filed a new petition nor requested additional time to do so. See Iowa R.Civ.P. 307(c) (directing petitions for writ of certiorari to be filed within thirty days of alleged illegal action, which time can be extended only upon motion filed within ninety days of the act complained of, and upon a showing the board or tribunal failed to notify petitioner of the action taken). Accordingly, he is precluded from challenging the Board’s decision. Because the district court properly denied his request for further review under the original writ, we affirm its ruling.

AFFIRMED.

      . The district court specifically ordered:

      . Although the district court found it had no authority to reach the substantive merits of the Board’s decision, the court apparently believed it had the ability to review whether the Board had issued written findings as required by the remand order: “Beyond the determination that the Board acted in conformity with this Court's prior Order, the Court has no further jurisdiction over the merits of the Petitioner's claims as set forth in his original Writ.” Because we determine the district court retained no jurisdiction under the original writ, we note it did not in fact have any authority to review whether the Board was in procedural compliance with its prior ruling.


author: STONEBURNER, Judge.

text:
    STATE of Minnesota, Appellant, v. Justin Daniel COUILLARD, Respondent.
    No. C3-01-1416.
    Court of Appeals of Minnesota.
    March 12, 2002.
    Review Denied May 15, 2002.

      Mike Hatch, Attorney General, St. Paul; and Belvin Doebbert, Pope County Attorney, Chad M. Larson, Assistant Pope County Attorney, Glenwood, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, for respondent.
    Considered and decided by HARTEN, Presiding Judge, ANDERSON, Judge, and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

The state appeals from an order of the district court suppressing evidence seized from respondent Justin Couillard’s backpack and dismissing the charges against him. Because Couillard does not have standing to contest the validity of the warrant that led to the search of the residence where the backpack was located, and because the search of Couillard’s backpack was within the scope of the warrant, we reverse and remand for further proceedings.

FACTS

On April 20, 2001, law enforcement officers, responding to a neighbor’s complaint about suspected drug activity at a residence in Glenwood, drove by the residence and observed a vehicle owned by a person known to be involved in drug activity. After the officers returned to the law enforcement center, the neighbor called to report that several vehicles that he had observed making short visits to the residence in the past were now parked near the residence. Because the officers knew that April 20th was designated as “smoke-up day,” a day on which marijuana users were encouraged to smoke marijuana beginning at 4:20 p.m., the officers went to the residence at 4:22 p.m. to speak to the owner. When Officer Danter entered the porch to knock on the front door, he detected the odor of burnt marijuana from inside the house. Before he could knock, he saw a person look at him through a shade. He then heard a loud noise, saw the person back away from the window, and heard people running through the residence. Officer Danter testified that he entered the residence because he believed a crime was in progress, and he feared that evidence of the crime would be destroyed.

Officer Danter saw several people running towards the back of the house. He also detected the strong smell of burnt marijuana and saw a tray of marijuana on a coffee table along with a glass pipe. Officer Danter identified himself as a police officer and instructed the occupants to stop running and return to the living room. Three people who had run out of the back door were detained by other officers after a brief pursuit. The owner of the residence identified himself. The owner and guests, including Couillard, were escorted outside and the officers secured the residence while Officer Danter obtained a search warrant for the residence, individuals, and vehicles present at the residence.

During the search of the residence, a large amount of marijuana was found in Couillard’s backpack, which was located on the living room floor. A small amount of marijuana was also found in his car. Couillard was charged with fifth-degree possession of a controlled substance. He moved to suppress the evidence on the basis that the warrant was not supported by adequate probable cause because the officer’s initial entry into the residence was illegal. The district court determined that although Couillard does not have standing to contest the validity of the warrant to search the residence, he has standing to contest the search of his backpack. The district court then concluded that the warrant was invalid, making the search of Couillard’s backpack illegal. The court granted Couillard’s motion to suppress the evidence and dismissed the charges. The state appeals.

ISSUE

Does a person who does not have standing to challenge the validity of a warrant to search a residence nonetheless have standing to challenge a search of his personal property located in the residence and, if so, may that challenge be based on the invalidity of the warrant?

ANALYSIS

To prevail in a pretrial appeal, the state must clearly and unequivocally demonstrate that the district court erred in its judgment and that the error will have a critical impact on the outcome of the trial. State v. Kim, 398 N.W.2d 544, 547 (Minn.1987). Because the district court’s suppression order resulted in a dismissal of the charges against Couillard, the state has shown the requisite critical impact.

When reviewing a state’s appeal from a pretrial order suppressing evidence, “we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing * * * the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (citation omitted).

1. Standing

The state asserts that, as “merely a party guest,” Couillard does not have standing to contest the search of the residence, and the district court agreed. The district court determined, however, that Couillard has standing to contest the search of his backpack located in the residence. We agree that Couillard has standing to challenge the search of his backpack, but hold that the district court erred by allowing Couillard’s challenge to the search of his backpack to be based on a challenge to the validity of the warrant to search the residence. See United States v. Lisk, 522 F.2d 228, 231 (7th Cir.1975) (holding that owner of a chattel seized during an illegal search of a car owned by a third party has standing to object to the seizure, but no standing to object to the search). The issue, therefore, is whether Couillard’s backpack could be searched pursuant to the warrant for the search of the residence.

2. Backpack search was within the scope of the warrant

Couillard, relying on State v. Wills, 524 N.W.2d 507 (Minn.App.1994), review denied, (Minn. Feb. 14, 1995), argues that a visitor has a legitimate expectation of privacy in his personal belongings. Citing to Wills, the district court determined that if a defendant has a legitimate expectation of privacy in his personal belongings, he then has standing to object to a search of the property where the belongings are located. The district court’s reliance on Wills, however, is misplaced. First, Wills did not involve the issue of standing. Second, Wills does not stand for the proposition that a challenge to a search of personal property must necessarily allow a challenge to the validity of a warrant to search the .premises where the property is located. Wills involved a challenge to the scope of a premises search warrant. Wills argued that the search of his safe during a warranted search of his girlfriend’s apartment exceeded the scope of the warrant. Id. at 508. Wills, therefore, provides authority for the proposition that Couillard may challenge the backpack search as beyond the scope of the warrant.

Although there is some debate, almost all jurisdictions have upheld searches of jackets, purses, bags, and other articles of personal property belonging to guests located on the premises at the time of a warranted search of the premises, if the articles were not in the guests’ possession and the articles searched could reasonably contain items listed in the warrant. See id. at 510 (surveying cases upholding search of guest’s personal property). In general,

[a]ny container situated within a residence that is the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant.

Id. at 509 (citations omitted).

In determining whether the search of Wills’s safe was within the scope of the warrant, we examined the relationship between Wills and the residence searched. Id. at 510.

While Wills argues that his personal effects were beyond the scope of the search warrant, under the general rule regarding the permissible scope of valid premises search warrants, the search and seizure of the safe was proper because the police reasonably could believe that the safe could conceal items of the kind portrayed in the warrant.

Id. at 511 (citations omitted). We also noted that the search of Wills’s safe was within the scope of the warrant because Wills did not have physical possession of the safe at the time the police executed the search warrant. Id. at 511-12. We said, in dictum, that Wills “may have had a stronger argument if he could have shown that he was merely a visitor to the apartment,” but we did not hold that a visitor necessarily has an expectation of privacy that would place his belongings outside the scope of the warrant. Id. at 511.

Wills actually provides authority for the search of Couillard’s backpack in this case. Couillard’s backpack was not in his possession at the time of the search. The officers had reason to suspect that guests had come to the residence for the purpose of smoking marijuana. The police found the backpack near the couch in the living room where a tray of marijuana was openly displayed on the coffee table. The police could reasonably suspect that the backpack contained marijuana or related items described in the warrant.

The district court erred by shifting the focus from Couillard’s standing to challenge the search of the backpack to an examination of the validity of the warrant after having concluded that Couillard does not have standing to challenge the validity of the warrant. For the first time, in argument on appeal, Couillard contends that he has standing to contest the search of the residence because he was named in the search warrant. In general, this court will refuse to address “an argument raised for the first time on appeal, particularly when it was not included in the brief.” Majestic, Inc. v. Berry, 593 N.W.2d 251, 257 (Minn.App.1999) (citing Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988)), review denied (Minn. Aug. 18,1999).

Couillard’s claim is nevertheless without merit. Although the warrant authorized a search of Couillard’s person and his car, the evidence was seized during a search of the premises. The search of the backpack was incident to a search of the residence, not Couillard’s person or car. The search of the backpack was within the scope of the warrant, and Couillard does not have standing to challenge the warrant. Beyond his challenge to the warrant, Couil-lard has not asserted any authority for the proposition that the search of his backpack violated his rights. Therefore, the evidence found in the backpack was erroneously suppressed.

DECISION

Although Couillard has standing to challenge the search of his personal property located at a third party’s residence, his challenge cannot be based on a challenge to the validity of the warrant issued for a search of the residence because Couillard does not have standing to challenge the warrant. The search of Couillard’s backpack was within the scope of the warrant, and the district court erred by suppressing the evidence found in the backpack.

Reversed and remanded.