author: HALBROOKS, Judge.

text:
    METROPOLITAN AIRPORTS COMMISSIONS, Plaintiff, v. William J. BEARMAN, et al., Appellants, Farm Credit Services of St. Cloud, et al., Defendants, City of Eden Prairie, Respondent.
    No. A05-2041.
    Court of Appeals of Minnesota.
    July 3, 2006.
    Leland S. Watson, Minneapolis, MN, for appellants.
    Mark J. Johnson, Siira B. Gunderson, Gregerson, Rosow, Johnson & Nilan, Ltd., Minneapolis, MN, for respondent.

      Considered and decided by PETERSON, Presiding Judge; HALBROOKS, Judge; and MINGE, Judge.
   OPINION

HALBROOKS, Judge.

Appellants challenge the district court’s order awarding respondent the remaining funds from an eminent-domain proceeding. Appellants allege, among other things, that they are entitled to the funds because respondent never enacted a resolution levying the special assessment that the parties agreed to. Because the city council failed to adopt a resolution levying the special assessment, there is no valid lien against appellants’ property, and they are entitled to the remaining funds. We therefore reverse.

FACTS

In 1999, appellants William and Claudia Bearman were notified by an agent of the Metropolitan Airports Commission (MAC) that MAC intended to take appellants’ property by eminent domain. Appellants, at the time, ran an equine-stabling business. After learning of the possible taking, appellants phased out their equine business and took steps to develop their property as a residential subdivision.

Appellants claim that between 1999 and 2001, they were sporadically informed that the taking might not occur. In February 2001, MAC filed its eminent-domain petition in the district court. The district court approved the petition in May and appointed a commission to determine compensation.

In the interim, in order to proceed with their residential subdivision, appellants negotiated with respondent city of Eden Prairie to gain approval for rezoning. The subdivision also required certain improvements, including sewers, water mains, and an extension of Eden Prairie Road. The parties entered into an assessment agreement (agreement) on August 21, 2001, whereby respondent would complete the improvements and appellants’ property would be subject to a special assessment in the amount of the cost of the improvements. The parties estimated that cost to be $114,897.25, and both agreed that that was the amount of special benefits the property would receive from the improvements.

On October 10, 2001, the commissioners filed their compensation award in the district court, which constitutes the official date of the taking. The commissioners awarded compensation in the amount of $2,847,346, but failed to apportion the award amongst the interested parties. Appellants conveyed the property to MAC in December at a closing. No action, including a city-council resolution adopting appellants’ petition for the special assessment, was taken by respondent on the agreement either prior to, or following, the taking in October 2001. In August 2004, appellants sent respondent a letter, attempting to terminate the agreement effective October 1, 2004.

The motion for approval of a final certificate of the eminent-domain proceeding was filed with the district court on March 16, 2005, at which time MAC had paid compensation to the interested parties and placed the disputed funds in escrow. The district court set a date to finalize approval of the eminent-domain proceeding. Appellants and respondent both moved for disbursement of the escrowed funds. The district court granted respondent’s motion and denied appellants’ motion, thereby ordering disbursement of the escrowed funds to respondent. This appeal follows.

ISSUE

Is the special-assessment agreement valid and enforceable?

ANALYSIS

“The levying of a special assessment is a legislative act. When an assessment is regularly made, it is presumed to be lawful and correct and the burden of proof rests upon the objector to demonstrate its invalidity.” Joint Indep. Sch. Dist. No. 287 v. City of Brooklyn Park, 256 N.W.2d 512, 516 (Minn.1977) (citing In re Appeals by Am. Oil Co. v. City of St. Cloud, 295 Minn. 428, 435, 206 N.W.2d 31, 36 (1973) (stating that “[Ijaying and apportioning assessments is legislative in its nature, and an assessment made by the body charged with that duty is presumed to be lawful and correct”) (quotation omitted)).

Chapter 429 of the Minnesota Statutes regulates the levying of special assessments for local improvements — the type of improvements involved here. Minn.Stat. § 429.061, subd. 1 (2004), regulates the assessment procedure:

At any time after the expense incurred or to be incurred in making an improvement shall be calculated under the direction of the council, the council shall determine by resolution the amount of the total expense the municipality will pay.... The proposed assessment roll shall be filed with the clerk and be open to public inspection. The clerk shall thereupon, under the council’s direction, publish notice that the council will meet to consider the proposed assessment.

(Emphasis added.) Prior to the public hearing on the proposed assessment, any affected landowners may file objections to the proposal with the clerk. Minn.Stat. § 429.061, subd. 1. At the public hearing, “the council shall hear and pass upon all objections to the proposed assessment.” Id., subd. 2 (Supp.2005). The council may then adopt the resolution. Id. “The assessment ... shall be a lien upon all private and public property ... from the date of the resolution adopting the assessment.” Id. (emphasis added). The definition of council, for purposes of this chapter, is “the body of the city having general legislative powers.” Minn.Stat. § 429.011, subd. 3 (2004).

Moreover, “[wjhen any portion of the cost of an improvement is defrayed by special assessments, the procedure prescribed in this chapter shall be followed unless the council determines to proceed under charter provisions.” Minn.Stat. § 429.021, subd. 3 (2004) (emphasis added); see Minn.Stat. § 645.44, subd. 16 (2004) (stating that “[sjhall is mandatory”).

Here, it is undisputed that respondent’s council never enacted a resolution adopting the special assessment. The parties entered into a contract, stating that appellants agreed to the assessment and that they waived their right to notice of the public hearing, the right to have a public hearing, and their right to object to the assessment. But they did not, and could not, waive the procedure by which an assessment is levied. It is required by statute that the council levy the special assessment, as it is a legislative function that the legislature delegated only to the council. See Minn.Stat. § 429.021, subd. 3. Respondent’s mayor signed the agreement; but that is not sufficient to levy a special assessment because it is not the procedure outlined by the statutes.

The agreement stated that the special assessment was a lien against the land. But it does not become a lien against the land until a special assessment is levied. Minn.Stat. § 429.061, subd. 2. Thus, the agreement did not, in and of itself, create a valid lien against the land.

DECISION

Because the city council never adopted a resolution levying the special assessment, it is invalid and unenforceable. Appellants are entitled to the funds in the escrow account.

Reversed.


source: Caselaw Access Project

author: DIETZEN, Judge.

license: Public Domain

text:
    Jeff BARTHELD, et al., Relators, v. COUNTY OF KOOCHICHING, et al., Respondents.
    No. A05-2124.
    Court of Appeals of Minnesota.
    July 11, 2006.

      James A. Bumgardner, Black, Moore, Bumgardner & Magnussen, Ltd., Elk River, MN, for relators.
    Stephen G. Andersen, Isaac Kaufman, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondents.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and HARTEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

DIETZEN, Judge.

Relators Jeff and Dana Bartheld challenge respondent Koochiching County’s denial of their conditional-use-permit application, arguing that the denial was arbitrary and capricious because they met the requirements under the county’s ordinance for the permit. Koochiching County argues that the denial was justified by the adoption of a moratorium ordinance that applied to all bed-and-breakfast applications within the county. Because the moratorium ordinance was invalid and the county’s decision was arbitrary and capricious, we reverse and remand.

FACTS

Relators Jeff and Dana Bartheld own a residence located on Rainy Lake in Kooc-hiching County, Minnesota (the county). Relators wanted to convert their residence into a bed and breakfast (B & B) consisting of five rental units in addition to rela-tors’ living space. The residence is in a district zoned by the county as “residential-recreation.” Under the county zoning ordinance, the permitted uses for this type of district includes one- and two-family dwellings but not home occupations or commercial businesses. In June 2005, after consulting with the county staff, rela-tors applied for a conditional-use permit (CUP) to operate the B & B as a home occupation. In their application, relators asserted that they met all the requirements under the county’s CUP ordinance to gain approval for the project.

On July 14, the Koochiching County Planning and Zoning Commission (zoning commission) held a hearing regarding rela-tors’ CUP application. Relators’ neighbors expressed a number of concerns about the proposal, including concerns over parking, traffic, noise, and declining-property values. The zoning commission delayed making a recommendation and scheduled a second hearing on the matter.

Before the second hearing, eight neighbors signed a petition opposing relators’ application on the grounds that the proposal would (1) increase noise, traffic, and parking in the area; (2) require additional dock space along the lake; (3) possibly block them views of the lake; (4) possibly impact the adequacy of the neighborhood sewer system; (5) decrease the value of them properties; (6) introduce strangers into the neighborhood; and (7) be like having a hotel in the area.

In response to the neighbors’ concerns, relators sent a letter to the zoning commission agreeing to amend their application by reducing the occupancy from five to two units, imposing a “quiet time” from 10:30 p.m. until 6:00 a.m., not offering liquor, restricting customer parking to relators’ property, and requiring its customers to use the Rainy Lake Marina to dock their boats.

On August 11; the zoning commission held a second hearing. Following this hearing, the zoning commission concluded that relators met all the requirements for approval under the county’s CUP ordinance and recommended approval of rela-tors’ application for a two-unit B & B for a period of five years subject to the revised conditions set forth by relators.

On August 17, the county’s Environmental Services Director submitted a request to the County Board of Commissioners (county board) for action on relators’ CUP application. The request noted that the project was “controversial” and that many neighbors were concerned over the proposal because of “road congestion, neighborhood incompatibility and other factors.”

On August 23, the county board held a hearing on relators’ application. Board members stated that they had received many phone calls on the issue from neighbors opposing the B & B and were advised of the possibility of another neighborhood petition with 60 signatures.

During public comment, neighbors expressed concerns that the B & B proposal would result in increased noise and traffic congestion and that the proposal was not compatible with the neighborhood. One neighbor “fear[ed] the bed and breakfast w[ould] create more noise due to entertainment of guestfs] and also w[ould] add more traffic to an already congested area.” Another neighbor expressed concerns that the proposed operation was in “an already congested neighborhood” and was not a “good fit.” One neighbor opined that the road would need to be improved before any businesses were added to the area and recommended that the county establish guidelines for the operation of B & Bs in the area so that there are guidelines to consider the location of these businesses.

After public comment, the county board approved a motion to deny the recommendation of the zoning commission to grant the CUP to relators and “plac[ed] a moratorium on all Bed and Breakfast lodging applications until guidelines are established for operation of these businesses in the [cjounty.” The reasons stated for the CUP denial were that “the request [was] hard to support when the vast majority of the property owners in the neighborhood are opposing it” and the board desired to “come[ ] up with further guidelines for establishing B & Bs in the County to ensure they are acting in a uniform manner.” The board did not issue or publish a temporary interim zoning ordinance. Re-lators appealed by writ of certiorari.

ISSUES

I. Did the county adopt a temporary interim zoning ordinance in accordance with MinmStat. § 394.34 (2004)?

II. Was the denial of relators’ CUP application to operate a B & B in their residence arbitrary and capricious?

ANALYSIS

I.

The county contends that it properly adopted a temporary interim zoning ordinance (interim zoning ordinance) on all applications for B & Bs, which constitutes a legally sufficient basis to deny relators’ CUP application. Relators argue that the interim zoning ordinance was not adopted in accordance with the statute, and is, therefore, invalid.

Under Minn.Stat. § 394.34 (2004), a county has the authority to adopt an interim zoning ordinance to conduct studies and hearings for the purpose of considering, inter alia, the amendment, extension, or addition to its comprehensive plan or official controls within the county. The purpose of the statute is to provide the county with the opportunity to study its comprehensive plan and official controls so that it can, in a meaningful way, consider potential amendments to its zoning maps or ordinances. An interim zoning ordinance adopted in accordance with the statute is a legislative act. See Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn.2000) (stating that “[a]mendment of a zoning ordinance is a legislative act”). “Legislative acts affect the rights of the public generally, unlike quasi-judicial acts which affect the rights of a few individuals analogous to the way they are affected by court proceedings.” Id. Because a moratorium is an interim zoning ordinance that affects all applicants, it is a legislative act.

“As a legislative act, a zoning or rezoning classification must be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare.” Honn v. City of Coon Rapids, 313 N.W.2d 409, 414-15 (Minn.1981) (quotation omitted). A municipality “has broad discretion in legislative matters, and even if the [county board’s] decision is debatable, so long as there is a rational basis for what it does, the courts do not interfere.” Id. at 415. But compliance with the requirements of Minn.Stat. § 394.34 is a question of law, which we review de novo. See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998) (statutory interpretation is a question of law, which this court reviews de novo).

Relator argues that the county did not comply with the requirements of the statute, which provides:

If a county is conducting, or in good faith intends to conduct studies within a reasonable time, or has held or is holding a hearing for the purpose of considering a comprehensive plan or official controls or an amendment, extension, or addition to either, ... the board in order to protect the public health, safety, and general welfare may adopt as an emergency measure a temporary interim zoning map or temporary interim zoning ordinance, the purpose of which shall be to classify and regulate uses and related matters as constitutes the emergency. Such interim resolution shall be limited to one year from the date it becomes effective and to one year to renewal thereafter.

Minn. Stat § 394.34. Thus, the county board may adopt as an emergency measure an interim zoning ordinance to protect the public’s health, safety, and welfare for the purpose of classifying and regulating land uses. Id. The statute clearly contemplates that the county board adopt a written instrument, i.e., a written interim zoning ordinance, find that an emergency exists, and follow other applicable statutory procedures. Id.; see Minn.Stat. § 375.51, subds. 1, 2 (2004) (every county ordinance adopting or amending official controls requires a public hearing preceded by published notice, adoption by majority vote and signed by the chair of the board, and be published). Following adoption and publication, the ordinance must be timely recorded. Id., subd. 1. The county must also establish that: (1) it is conducting, or in good faith intends to conduct, a study within a reasonable period of time; or (2) has held, or is holding, a hearing to consider either adopting or amending its comprehensive plan or official control; and (3) the interim zoning ordinance shall be limited to one year from its effective date and to a one-year renewal period. Minn.Stat. § 394.34.

Here, the minutes from the county board indicate that it approved a motion to “plac[e] a moratorium on all Bed and Breakfast lodging applications until guidelines are established for operation of these businesses in the [c]ounty.” Although the motion does not use the language of the statute, it is clear that the motion was to adopt an interim zoning ordinance that would halt all B & B proposals while the county conducted studies.

The county concedes that it (1) did not adopt a written interim zoning ordinance; (2) did not find that an emergency existed; (3) did not intend to conduct a study or hold a hearing; (4) did not limit the duration of the interim zoning ordinance to less than one year; and (5) did not follow the statutory procedures for enactment of an ordinance set forth in Minn.Stat. §§ 375.51, subd. 1, and 394.34. Based on the record before us, we conclude that the county board failed to comply with the requirements of Minn.Stat. § 394.34. Consequently, the interim zoning ordinance was invalid and did not provide a legally sufficient basis to deny relators’ application.

II.

Relators contend that they met all the ordinance requirements for a CUP and that the county’s denial of its application was therefore arbitrary and capricious. Decisions of a county to grant or deny a CUP are quasi-judicial in nature and reviewable by writ of certiorari. Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn.2000). We review quasi-judicial zoning decisions such as the approval or denial of a CUP to determine whether the municipality’s actions were arbitrary, capricious, or unreasonable. Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn.2003) (CUP denial); VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.1983) (quasi-judicial zoning decisions).

“A county’s denial of a conditional use permit is arbitrary where the applicant establishes that all of the standards specified by the zoning ordinance as conditions of granting the permit have been met.” Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn.App.2003). By statute, counties may approve conditional uses if the applicant satisfies the standards set out in the county ordinance. Minn. Stat. § 394.301, subd. 1 (2004). When a county states reasons for denying the permit, a reviewing court may reverse the decision if the reasons are legally insufficient or if the decision is without factual basis. Nw. Coll. v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn.1979). The party seeking review has the burden of persuading the reviewing court that those reasons are legally insufficient. Id. “Reasonableness is measured by examining whether the standards in the ordinance have been satisfied.” City of Barnum v. Carlton County, 386 N.W.2d 770, 775 (Minn.App.1986) (citing White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn.1982)).

Under the Koochiching County Zoning Ordinance (ordinance), permitted uses for properties in districts that are zoned as “residential-recreation” include “[o]ne-fam-ily and two-family seasonal and year round dwellings.” Koochiching County, Minn., Zoning Ordinance § 2.79(a) (1975). The ordinance provides that “[r]ecreational service-oriented uses such as resorts and motels ... and other recreational services which in the opinion of the County Planning Commission are of the same general character or clearly incidental to a permitted use or use authorized by conditional permit.” Id. § 2.79(b)(4). The ordinance states that a CUP shall be granted if the board finds that:

(1) the conditional use will not be injurious to the use and enjoyment of the environment, or detrimental to the rightful use and enjoyment of other property in the immediate vicinity, or neighborhood, nor substantially diminish and impair property values within the surrounding neighborhood;
(2) The establishment of the conditional use will not impede the normal and orderly development and improvement of surrounding property for uses predominant in the area;
(3) The location and character of the proposed development are considered to be consistent with a desirable pattern of development for the locality in general;
(4) The proposed development and-or land use be consistent and in keeping with the spirit and intent of this ordinance; [and]
(5) Whenever it is deemed necessary and advisable, a limitation and-or renewal of the conditional use permit may be required.

Id. § 5.12.

In their application, relators presented evidence that they met all the requirements under the county ordinance. When the zoning commission recommended approval of the CUP, it concluded that relators met all the requirements of the ordinance and that their amendments to their original application satisfied the reasonable concerns of the neighbors. The county board denied relators’ application on the basis that (1) “the request [was] hard to support when the vast majority of property owners in the neighborhood are opposing it,” and (2) it was “coming up with guidelines for establishing B & Bs in the County to ensure they are acting in a uniform manner.”

Because the county did not enact a valid interim zoning ordinance, the remaining basis articulated by the county for denying relators’ CUP application was that a majority of the neighbors opposed the project. But neighborhood opposition alone is not a sufficient basis for denying a project. Amoco Oil Co. v. City of Minneapolis, 395 N.W.2d 115, 118-19 (Minn.App.1986) (concluding that “[t]he simple fact that community members oppose a landowner using his land for a particular purpose is not a legally sufficient reason for denying a special use permit”) (quoting Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 718 (Minn.1978)).

Here, the county failed to articulate any other reasons for denying the CUP application. And the county did not specify or refer to its ordinance in denying the CUP application. Without such findings, the county board’s denial is presumed arbitrary and capricious, unless the county shows otherwise. See Crystal Beach Bay Ass’n v. County of Koochiching, 309 Minn. 52, 55, 243 N.W.2d 40, 42 (Minn.1976) (“[A] prima facie case of arbitrariness exists if the county board’s decision is not accompanied by findings to show that its action ‘was reached upon a consideration of the facts and was based upon reason rather than the mere individual whim of the ... members.’ ”).

The county suggests that there is a factual basis in the record to support its denial of the CUP and points to neighborhood concerns expressed at the hearing before the county board regarding noise, traffic, and neighborhood compatibility. But the county failed to adopt findings regarding noise, traffic, or compatibility. “While it is not necessary to prepare formal findings of fact, a county board ‘must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.’ ” Picha v. County of McLeod, 634 N.W.2d 739, 742 (Minn.App.2001) (citing Honn v. Coon Rapids, 313 N.W.2d 409, 416 (Minn.1981)); see also White Bear Rod and Gun Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn.1986) (holding that a city council’s decision to deny a special use permit lacked adequate findings when it listed nothing more than its sources of information and did not state how the council may have evaluated or used this information). Further, the county failed to make any findings that addressed the CUP factors in the county ordinance. See Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn.1994) (reversing and remanding CUP denial because board did not state the rationale for its decision with specific reference to relevant provisions of ordinance governing determination of these permits).

Several neighbors testified about their concerns regarding noise, traffic, and compatibility. But that testimony was in the nature of vague, generalized concerns, rather than in the nature of actual facts or experience regarding the potential impact of the project on the neighborhood. “A [county] may consider neighborhood opposition only if based on concrete information.” Yang, 660 N.W.2d at 833; see also Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn.1984) (concluding that generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for a CUP denial).

The county argues that SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 267 (Minn.App.1995), review denied (Minn. Jan. 5, 1996), supports its position that neighborhood observations regarding traffic were sufficient to justify the board’s denial of relators’ CUP application. In SuperAmerica, this court affirmed the denial of a CUP based on residents’ testimony regarding the existing and potential traffic impact of the project, which included actual observations of current traffic levels and specific instances of traffic congestion. Id. at 268.

Here, unlike SuperAmerica, the minutes of the county board meeting do not reflect any testimony regarding actual observations of traffic congestion or potential traffic impact. Cf. id. The record reveals no basis for the neighbors’ claim that traffic congestion is a problem that would increase if relators’ CUP application were granted.

Further, there is no evidence in the record of a potential noise impact of the proposal that would violate state law or the county ordinance. And there is no evidence of any potential conflict with the proposed use of relator’s home as a B & B with the other land-use activities in the neighborhood, particularly given that rela-tors amended their application to limit nighttime activity.

Because the record does not support the county’s denial of the CUP application as amended by relator’s letter, we reverse the county’s decision and remand with directions that the county issue the permit. See Picha, 634 N.W.2d at 743 (reversing and remanding to the county to issue a CUP where it found denial of CUP was arbitrary and capricious); see also Barnum, 386 N.W.2d at 776 (concluding that remanding the case for findings would be unfair to appellants because of the risk that any findings made by the county board at this late date would merely rationalize their previous decision).

DECISION

The county did not adopt a temporary interim zoning ordinance in accordance with Minn.Stat. § 394.34, and the neighborhood opposition to relator’s CUP application is based on generalized concerns not supported in the record. Therefore, we reverse the county’s decision and remand with directions that the county issue the permit, subject to the conditions set forth in relators letter amending the application.

Reversed and remanded.

could subrogate. - Neb.Rev.St. 118.04. 4^ r

4. Statutes @=>188,190

Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

5. Statutes @=190

Absent ambiguity, courts must give effect to the statutes as they are written; if the language of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning.

6. Workers’ Compensation @=2189

Workers’ compensation statute governing subrogation interests against payments made by a third party does not adopt a “made whole” doctrine. Neb.Rev. St. § 48-118.04.

7. Courts @=89

A case is not authority for any point not necessary to be passed on to decide the case. ■

8. Workers’ Compensation @=2251

Workers’ compensation statute governing subrogation interests against payments made by a third party does not prescribe an exact formula for the trial court to apply when making a fair and equitable distribution of payments. Neb. Rev.St. § 48-118.04.

9. Constitutional Law @=70.1(2)

It is not within the province of the Nebraska Supreme Court to read a meaning into a statute that is not there.

10. Workers’ Compensation @=2251

Under the plain language of workers’ compensation statute governing subrogation interest against payments made by a third party, the trial court shall make a

      . Under Minn.Stat. § 394.34 (2004), a county may adopt a temporary interim zoning ordinance to protect the planning process. Although the county calls it a moratorium ordinance, there is no dispute that it is a temporary interim zoning ordinance under that statute.


author: SANDSTROM, Justice.

text:
    2006 ND 125
    STATE of North Dakota, Plaintiff and Appellee v. Phillip Charles MANNING, Defendant and Appellant.
    No. 20050327.
    Supreme Court of North Dakota.
    June 5, 2006.
    Barbara L. Whelan, Special Assistant State’s Attorney, Crystal, ND, for plaintiff and appellee; submitted on brief.
    William R. Hartl, Rugby, ND, for defendant and appellant; submitted on brief.
   SANDSTROM, Justice.

[¶ 1] Phillip Charles Manning appeals from the district court’s criminal judgment entered after he conditionally pled guilty to disobedience of a judicial order. He argues the district court abused its discretion when it excluded evidence he wished to present in support of his necessity defense. Concluding the district court did not abuse its discretion, we affirm.

I

[¶ 2] Manning was divorced from his wife in May 2002. Manning v. Manning, 2006 ND 67, ¶ 3, 711 N.W.2d 149. The parties were granted split physical custody of their two children. Id. The split custody arrangement quickly deteriorated, and both parties moved for change of custody, each seeking sole custody of the children. Id. at ¶¶4-5. In May 2004, the district court amended the divorce judgment, granting the mother sole physical custody of both children and arranging a visitation schedule for Manning. Id. at ¶ 6. While exercising visitation in August 2004, Manning took the children to Canada without permission. Id. at ¶ 8. Manning was charged with removing a child from the state in violation of a custody decree.

[¶ 3] In March 2005, Manning moved the court to allow a justification or excuse defense, wishing to allege the defense of necessity. Also in March, the State moved to exclude a large share of Manning’s proposed trial evidence. The State argued that evidence of past child abuse allegedly committed by the mother prior to March 30, 2004, was irrelevant. Manning opposed the motion, requesting all the evidence of alleged past abuse be allowed.

[¶ 4] The district court concluded that although the defense of necessity was not specifically recognized in North Dakota, it would allow the defense for this case. The district court excluded, however, any evidence alleging child abuse on or before March 30, 2004, the last day evidence was heard in the parties’ custody dispute. The court held the evidence prior to that date was irrelevant for the criminal offense that allegedly took place in August 2004. According to the terms of a plea agreement, the State amended its complaint, recharging Manning with disobedience of a judicial order. Manning conditionally pled guilty and appealed.

[¶ 5] On appeal, Manning argues the district court abused its discretion when it excluded his evidence of child abuse occurring before March 30, 2004, because it was relevant to his necessity defense. The State argues the evidence is irrelevant and the district court properly excluded it.

[¶ 6] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.RApp.P. 4(b), and this Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 7] “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.D.R.Ev. 401. All relevant evidence is admissible. N.D.R.Ev. 402. Relevant evidence may be excluded, however, “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.D.R.Ev. 403. A trial court is granted broad discretion when deciding whether evidence is relevant, and this Court will not reverse unless that court abused its discretion. State v. Miller, 2001 ND 132, ¶ 6, 631 N.W.2d 587. “A trial court abuses its discretion in eviden-tiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.” State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498.

[¶ 8] Although the “broad notion of necessity ... has not yet been recognized by this court,” State v. Sahr, 470 N.W.2d 185, 188 (N.D.1991), the district court held that the defendant was entitled to present evidence relevant to the defense and could have the jury instructed on the defense if he could present sufficient evidence. Manning proffered 186 exhibits in support of his necessity defense. Much of this evidence predates March 30, 2004, the last day evidence was heard on the parents’ change of custody motions. The district court held that it would allow evidence dated after March 30, 2004, upon proper foundation. It excluded, however, any evidence from before March 30, because it had already been considered in the child custody case and would only serve to confuse the issues and mislead the jury.

[¶ 9] The district court considered evidence of alleged abuse predating March 30, 2004, in the custody case. That court found the mother had not abused the children and granted her custody of the children. Manning, 2006 ND 67, ¶¶ 6, 17, 711 N.W.2d 149. The district court in this criminal case admitted the amended divorce judgment as evidence but not the order in which the court considering the custody motions found no abuse had occurred. Manning may not have agreed with the custody court’s order and judgment, but he could not disobey its order and judgment because he believed the order and judgment were erroneous. See State v. Heath, 177 N.W.2d 751, 755 (N.D.1970) (“If every defendant were held to have the right to disobey any court order which is not to his liking, orderly legal procedure would cease to exist and chaos would result.”); see also 17 Am.Jur.2d Contempt § 147 (1990) (“An alleged con-temnor who feels that an order is erroneous has an adequate remedy to have it reviewed by way of appeal, and absent a stay, is required to comply promptly with the order pending appeal.”). Admitting both the exhibits, which Manning claims support his allegation of child abuse, and the amended judgment, which granted custody to the person Manning claims abused the children, would have presented the issue why the mother would be allowed to have custody of the children with evidence of prior abuse, an issue not relevant to the criminal case. Therefore, the evidence would have misled and confused the jury. The exhibits the court allowed contained more recent allegations of abuse occurring after March 30, 2004, and prior to Manning’s taking the children to Canada. These exhibits struck at the heart of the issue: was Manning justified or excused in taking his children to Canada rather than returning the children to their mother because it was the lesser of two evils.

[¶ 10] Although the district court excluded much of the evidence that allegedly supported Manning’s necessity defense, the court also allowed information that would have potentially supported the defense. The court weighed the competing interests and came to a solution that kept the exhibits timely and relevant and still allowed Manning to present his defense. The district court did not act arbitrarily, unreasonably, or capriciously. Also, the court did not misapply or misinterpret the law. Therefore, the district court did not abuse its discretion. Because resolving the issue of whether necessity is a valid defense in North Dakota is not necessary, we make no holding or conclusion on the issue. See Wanner v. N.D. Workers Comp. Bureau, 2002 ND 201, ¶ 31, 654 N.W.2d 760 (this Court need not reach issues not necessary to its disposition of a case).

Ill

[¶ 11] The district court’s criminal judgment is affirmed.

[¶ 12] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, CAROL RONNING KAPSNER, JJ., and JAMES M. BEKKEN, District Judge, concur.

[¶ 13] The Honorable JAMES M. BEKKEN, District Judge, sitting in place of MARING, J., disqualified.


text:
    2006 ND 126
    In the Interest of E.G., a Child, and A.S., a Child. Carmen Hickle, Petitioner and Appellee v. E.G., Child; A.S., Child; V.G., Mother; L.S., Father; and the guardian ad litem, Susan Schmidt; and the Executive Director of Human Services Department, State of North Dakota, Respondents. V.G., Mother, Respondent and Appellant.
    Nos. 20050447-20050448.
    Supreme Court of North Dakota.
    June 5, 2006.

      Justin J. Schwarz, Assistant State’s Attorney, Courthouse, Bismarck, N.D., for petitioner and appellee.
    Thomas M. Jackson (argued) and Bradley D. Peterson, Legal Services of North Dakota, Bismarck, N.D., for respondent and appellant.
   SANDSTROM, Justice.

[¶ 1] V.G. appeals the juvenile court order terminating her parental rights. She contends the juvenile court erred when it found that her children were deprived, that the deprivation was likely to continue, and that the children would, as a result of the continued deprivation, suffer harm. Concluding the juvenile court’s findings of fact are not clearly erroneous, we affirm.

I

[¶ 2] V.G. and L.S. are the parents of E.G. and A.S. The children suffer from several mental and psychological disorders. E.G. is currently diagnosed with attention deficit hyperactivity disorder (“ADHD”) combined type, a phonological disorder, pervasive developmental disorder, enuresis, bed-wetting, disruptive behavioral disorder, and mild mental retardation. A.S. is currently diagnosed with ADHD combined type, a phonological disorder, and moderate mental retardation. V.G., the children’s mother, suffers from diabetes, renal failure, and a bad disk in her back, and she requires regular kidney dialysis. V.G. has been admitted to several hospitals and a nursing home in recent years. Her treating physician testified she has received treatment for her back, which is improving.

[¶ 3] In August 2003, V.G. voluntarily placed E.G. in foster care, and A.S. was voluntarily placed in January 2004, because V.G. was having difficulty controlling them. In July 2004, the children’s foster care was involuntarily continued when the juvenile court found the children were deprived.

[¶ 4] In July 2005, Carmen Hickle, a social worker with Burleigh County and Morton County Child Protection Services, petitioned to terminate the parental rights of both parents. According to Hickle, the children continued to be deprived because V.G. was at that time in a nursing home and because she could not control them. A guardian ad litem was appointed for the children, and she recommended the parental rights of both parents be terminated. After a hearing, the juvenile court terminated the rights of both parents.

[¶ 5] On appeal, V.G. argues the juvenile court erred because there is not clear and convincing evidence that the children were deprived, that the deprivation is likely to continue, and that the children are likely to suffer harm because of the deprivation. She contends that because her condition has improved, she is able to care for the children. The petitioner argues the juvenile court did not err when it terminated V.G.’s parental rights.

[¶ 6] The juvenile court had jurisdiction under N.D.C.C. § 27-20-03(l)(b). The notice of appeal was not timely under N.D.C.C. § 27-20-56(1) but was timely under N.D.R.App.P. 4(a). This Court extended the time to file the notice of appeal. See Interest of C.R.H., 2000 ND 222, ¶ 4, 620 N.W.2d 175 (“The statutory 30-day time for appeal is not absolute and this Court can grant extensions of time for filing an appeal under the statute.”). This Court has jurisdiction under N.D. Const, art. VI, §§ 2, 6, and N.D.C.C. § 27-20-56(1).

II

[¶ 7] For a court to terminate a person’s parental rights, the petitioner must prove by clear and convincing evidence: (1) “The child is a deprived child,” (2) “The conditions and causes of the deprivation are likely to continue or will not be remedied,” and (3) “that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27-20-44(l)(b); Interest of M.B., 2006 ND 19, ¶ 13, 709 N.W.2d 11. Clear and convincing evidence is “evidence that leads to a firm belief or conviction the allegations are true.” Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913. A juvenile court’s decision to terminate parental rights is a question of fact that will not be overturned unless the decision is clearly erroneous. N.D.R.CivJP. 52(a); M.B., at ¶ 13. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made.” S.R.F., at ¶ 8.

A

[¶ 8] First, the petitioner must prove the child is a deprived child. N.D.C.C. • § 27-20-44(l)(b). “Deprived child” is statutorily defined as a child:

without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian[.]

N.D.C.C. § 27-20-02(8)(a). “Proper parental care” means the “minimum standards of care which the community will tolerate.” Interest of J.R., 2002 ND 78, ¶ 9, 643 N.W.2d 699.

[¶ 9] Dr. Kevin Dahmen, the children’s psychiatrist, testified E.G. had been hitting, kicking, and biting his brother and mother. He also testified that when he observed the children and the mother together during treatment sessions, the children were out of control and the mother often did nothing to discipline them. Dr. Dahmen testified that although the children’s mental and psychological problems were genetic, their behavioral problems resulted from parenting problems. Rosemary Eymann, a parenting aide who worked with the family, testified V.G.’s former home in Lincoln, North Dakota, was a “real mess,” including dog and cat food on the floors and V.G.’s dog and cat entering and exiting through windows. She testified V.G. did not give the children any limits. Eymann also testified she was concerned for the children’s safety. Kristen Love, a licensed social worker, care coordinator, and case manager with West Central Human Services, testified the children were verbally and physically aggressive. Elysia Buffington, a therapeutic social worker, testified she was concerned for the children’s safety. She testified that on one occasion, one child had gotten out of V.G.’s car while it was moving. She also testified that when V.G. had the children on visits, she had not given them their medication. This testimony supports the juvenile court’s finding by clear and convincing evidence that the children were deprived. The court did not clearly err when it concluded each child met the definition of a deprived child.

B

[¶ 10] Second, the petitioner must prove that the deprivation is “likely to continue or will not be remedied.” N.D.C.C. § 27-20-44(1)00(1). The petitioner must provide prognostic evidence, demonstrating the deprivation will continue, and the petitioner cannot rely on past deprivation alone. Interest of T.K., 2001 ND 127, ¶ 14, 630 N.W.2d 38. “Prognostic evidence, including reports and opinions of the professionals involved, that forms the basis for a reasonable prediction as to future behavior must be evaluated in determining if a child’s deprivation is likely to continue.” Interest of D.Q., 2002 ND 188, ¶ 21, 653 N.W.2d 713 (citing Interest of D.F.G., 1999 ND 216, ¶ 20, 602 N.W.2d 697). A parent’s lack of cooperation in parenting classes or with social workers is probative, as is the parent’s background. M.B., 2006 ND 19, ¶ 16, 709 N.W.2d 11.

[¶ 11] In cases of special-needs children, the juvenile court may take the special needs of the children into account when deciding whether the deprivation is likely to continue. Interest of L.J., 436 N.W.2d 558, 561 (N.D.1989). In L.J., this Court concluded that the parents of special-needs children are required to meet a quantum of parenting that will allow the children to reasonably meet their potential and that the leeway given to the parents is limited because of the special needs of the children:

In the case of the special-needs-child, the minimum care that a community will tolerate must necessarily include not only providing basic necessities of food, shelter, and clothing, but also providing the quantum of supervision, supportive education and nurture that will permit the child’s reasonable development given the child’s reasonable potential. A parent is not expected to do more than to provide the care and control necessary under the circumstances. When a child’s potential is limited, so is the leeway of a parent to meet minimum standards.

Id.

[¶ 12] Dr. Dahmen testified that because of the children’s condition, they will need a great deal of supervision and assistance, possibly for their entire lives. He testified E.G. and A.S. are in “the top five percent” of children as far as difficulty to treat. He testified he is concerned V.G. will be unable to control either child. Dr. Dahmen also testified that after he wrote a letter recommending the termination of V.G.’s rights, a new concern arose. He testified E.G.’s behavior had become worse, and when asked why, E.G. told Dr. Dahmen that he did not have to behave any more or listen to his foster parents because he was going to live with his mother again. Dr. Dahmen testified that having V.G. “involved” with the children was not helping “at this point.”

[¶ 13] Dr. Dahmen also testified as to V.G.’s lack of cooperation in the children’s treatment. He testified that during treatment sessions, the children would become disruptive and V.G. would sit “motionless” and not discipline the children. He testified the children’s foster mother would have to prompt V.G. to discipline the children. Dr. Dahmen also testified V.G. had not improved through parenting aide sessions.

[¶ 14] Eymann testified V.G. had missed “quite a few” meetings with her. Eymann testified V.G. said she “didn’t learn a thing” from the nurturing classes she had taken. She testified V.G.’s visitation with the children had gone from supervised to unsupervised, but then back to supervised shortly thereafter because the children had “boundary issues.” Love testified that when the children were with V.G. full-time in May 2004, E.G.’s behavior became worse. She also testified V.G. had made very little progress in achieving parenting goals. Hickle testified social workers discontinued unsupervised visits after three months because the boys’ behavior was “very disruptive after the visits,” similar to Eymann’s testimony. Hickle testified the only progress she had seen in V.G. was in her physical condition, not in her ability to care for E.G. and A.S. This testimony supports the juvenile court’s finding by clear and convincing evidence that if the children were returned to the care of their mother, their deprivation would be likely to continue. The juvenile court’s finding that the deprivation is likely to continue or will not be remedied is not clearly erroneous.

C

[¶ 15] Finally, the petitioner must prove “the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27-20M4(l)(b)(l). This element may also be shown by prognostic evidence. M.B., 2006 ND 19, ¶18, 709 N.W.2d 11.

[¶ 16] Dr. Dahmen testified that after V.G. was released from a nursing home, E.G.’s behaviors worsened because he believed he would be living with V.G. and did not need to behave anymore. Dr. Dahmen testified this case is a “classic example” of children doing well in the foster setting and then relapsing in the primary home. Eymann and Hickle both testified unsupervised visits had to be discontinued because the children’s behavior had deteriorated after the unsupervised visits. Hickle testified V.G.’s only improvements have been in her physical condition, not her parenting skills. This testimony supports the juvenile court’s finding by clear and convincing evidence that if V.G.’s rights are not terminated and the boys are returned to her, they “will probably suffer serious physical, mental, moral, or emotional harm.” N.D.C.C. § 27-20-44(l)(b)(l). The juvenile court’s finding of fact is not clearly erroneous.

Ill

[¶ 17] The juvenile court’s findings were not clearly erroneous, and we affirm its order terminating V.G.’s parental rights.

[¶ 18] WILLIAM F. HODNY, S.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.

[¶ 19] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of VANDE WALLE, C.J., disqualified.


author: MEIERHENRY, Justice. ZINTER, Justice

text:
    2006 SD 49
    Joseph D. HOCKETT and Peggy L. Hockett, Plaintiffs and Appellees, v. Glenn D. LaPOINTE, Defendant, and AMCO Insurance Company, Defendant and Appellant.
    No. 23711.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 9, 2006.
    Decided June 7, 2006.
    Rehearing Denied July 3, 2006.
    Stanley E. Whiting, Winner, SD, for plaintiffs and appellees.
    Robert B. Anderson, Brittany L. Novot-ny of May, Adam, Gerdes & Thompson, L.L.P., Pierre, SD, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Joseph and Peggy Hockett (Hocketts) each suffered damages in excess of $100,000 due to an automobile accident with an uninsured motorist. Hock-etts each received $100,000 of uninsured motorist (UM) benefits from the primary policy that covered the vehicle in which they were traveling. They then sought to recover uninsured motorist coverage from their insurer, AMCO Insurance Company (AMCO). The trial court determined Hocketts could stack their UM benefits. The narrow issue presented on appeal is whether, absent a request for greater coverage, the language of SDCL 58-11-9 allows Hocketts to stack UM policies where doing so results in a recovery in excess of $100,000. We hold that the language of SDCL 58-11-9 does not create a mandatory maximum amount of recovery when UM policies are stacked.

FACTS

[¶ 2.] This case arose out of an automobile accident involving two vehicles. Neither the driver at fault, Glenn LaPointe (LaPointe), nor the vehicle he drove were insured. The second vehicle was owned by Rebecca Hockett and insured by State Farm Mutual Automobile Insurance Company (State Farm). At the time of the accident, Rebecca’s father, Joseph Hockett was driving the vehicle, and both Peggy Hockett, Joseph’s wife, and Rebecca were passengers. Joseph and Peggy are the plaintiffs in this action.

[¶ 3.] Rebecca’s State Farm policy provided uninsured motorist coverage up to $100,000 per person or $300,000 per accident. As the primary insurer, State Farm paid both Joseph and Peggy Hockett $100,000 each for the injuries they sustained. The parties stipulated that each sustained injuries in excess of $100,000. Joseph and Peggy Hockett were also insured under a personal automobile policy provided by AMCO, which provided UM coverage of $50,000 per person or $100,000 per accident. Hocketts filed a claim with AMCO for that amount, but AMCO denied coverage.

[¶ 4.] Hocketts brought this suit against LaPointe and AMCO. Hocketts alleged that they each incurred damages in excess of $100,000. Therefore, they sought not only a judgment against La-Pointe for damages, but also a declaration that the AMCO policy must be used to satisfy that judgment in whole or in part. Asserting that Hocketts had no claim for coverage, AMCO moved for summary judgment. The parties submitted a statement of undisputed material facts which stipulated that Hocketts each recovered $100,000 from State Farm and that they were requesting the additional $50,000 uninsured motorist coverage provided by the AMCO policy. The circuit court denied AMCO’s motion and ruled that Hock-etts could recover from AMCO. The court determined that Hocketts could stack the AMCO uninsured motorist coverage up to the amount of their actual injuries. AMCO appeals that decision and presents one issue for this Court’s determination.

ISSUE
Whether the trial court erred in its determination that the language of SDCL 58-11-9 does not prohibit Hocketts from recovering under their own insurance policy’s UM coverage when their damages exceeded the $100,000 UM recovered from other insurance.

STANDARD OF REVIEW

[¶ 5.] As we have repeatedly recognized, summary judgment is appropriate when the moving party demonstrates that there is no genuine issue of material fact. SDCL 15 — 6—56(c); Thornton v. City of Rapid City, 2005 SD 15, ¶ 4, 692 N.W.2d 525, 528-29. In doing so, we must view all evidence in a light most favorable to the nonmoving party. Id. (citation omitted). We must also determine whether the law was correctly applied. Phen v. Progressive N. Ins. Co., 2003 SD 133, ¶ 5, 672 N.W.2d 52, 54. The interpretation of both statutes and insurance contracts are questions of law subject to de novo review. MGA Ins. Co. v. Goodsell, 2005 SD 118, ¶ 9, 707 N.W.2d 483, 485.

DECISION

[¶ 6.] The backdrop of our stacking jurisprudence is sometimes a confusing patchwork of cases and statutes defining and redefining both UM benefits and un-derinsured motorist (UIM) benefits. Since the Legislature first mandated UM and UIM coverage in this state, the law has been changed and interpreted several times. See, e.g., Phen, 2003 SD 133, 672 N.W.2d at 52; Nickerson v. Am. States Ins., 2000 SD 121, 616 N.W.2d 468; Union Ins. Co. v. Stanage, 454 N.W.2d 736 (S.D.1990); Cunningham v. W. Cas. & Sur. Co., 90 S.D. 530, 243 N.W.2d 172 (1976); Westphal v. Amco Ins. Co., 87 S.D. 404, 209 N.W.2d 555 (1973). For the most part, stacking is now controlled by statute. SDCL 58-11-9.7 prohibits stacking an insured’s UM and UIM benefits “to determine the limit of insurance coverage available to an injured person for any one accident,” unless “two or more separate motor vehicle operators, one uninsured and the other underinsured, are determined to be liable.” Likewise, SDCL 58-11-9.8 disallows stacking UM benefits from more than one of an insured’s vehicles, while SDCL 58-11-9.9 does the same for UIM benefits. In addition, SDCL 58-11-9.5 — the “difference of limits” statute— prohibits “stacking of UIM coverage from two policies.” Nickerson, 2000 SD 121, ¶ 12, 616 N.W.2d at 471.

[¶ 7.] In contrast, however, the current law does not specifically prohibit stacking UM coverage available under two different policies from two different insurers. We first addressed such a situation in Westphal, 87 S.D. at 404, 209 N.W.2d at 555. Westphal held that a policy provision precluding the recovery of UM benefits where such benefits were recoverable from another vehicle was against public policy and therefore void. Id. at 410-11, 209 N.W.2d at 559. As a result, Westphal allowed a person injured by an uninsured motorist while riding in another’s vehicle to recover both the UM coverage applicable to that vehicle and also the UM coverage available under the injured person’s own automobile liability policy. Id.

[¶ 8.] Although the UM statute, SDCL 58-11-9, has been amended since our decision in Westphal, none of the amendments changed our Westphal analysis and we have repeatedly affirmed its holding. See Phen, 2003 SD 133, ¶ 21, 672 N.W.2d at 58; Union, 454 N.W.2d at 739. Our most recent stacking case, Phen, follows West-phal and determines that a policy provision which precludes recovery of UM benefits is against public policy. See 2003 SD 133, ¶ 21, 672 N.W.2d at 58.

[¶ 9.] While recognizing that our decisions in Westphal and Phen allow stacking in situations almost identical to the one presented in this case, AMCO contends that the language of the UM statute precludes stacking here. Therefore, we must consider the language of the current version of the statute and the evolution thereof. The UM coverage statute was first enacted in 1966. The statute provided:

No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in § 32-35-70 [$15,000/$30,000] for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage....

1966 SD Laws ch. Ill, § 16(5). The first change occurred in 1972 when the Legislature removed the provision that allowed an insured to reject UM coverage, thus making coverage mandatory. 1972 SD Laws ch. 261. The Legislature again amended the statute in 1975 and 1982. 1975 SL ch. 307; 1982 SL ch. 356. The 1975 amendment allowed an insured to request UM coverage in excess of the amount provided by statute. 1975 SL ch. 315, § 1. The 1982 amendment set the required amounts of UM coverage as follows:

... the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured.

1982 SL ch. 356. The 1982 provisions remain in effect today.

[¶ 10.] These legislative changes have resulted in the current version of SDCL 58-11-9 which, in its entirety, provides:

No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, except for snowmobiles, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured. Any policy insuring government owned vehicles may not be required to provide uninsured motorist coverage.

SDCL 58-11-9. In essence, the UM statute requires all automobile liability insurance policies “delivered or issued for delivery” in South Dakota covering “any motor vehicle registered or principally garaged” in South Dakota to provide coverage for damages inflicted by uninsured and hit- and-run motorists. SDCL 58-11-9. The required UM policy coverage must be “in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death.” SDCL 58-11-9. Additionally, the UM policy coverage “may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured.” SDCL 58-11-9 (emphasis added).

[¶ 11.] AMCO claims that the $100,000/ $300,000 amounts referenced in the statute serve as the mandatory maximum recovery when two or more UM policies are stacked. The plain meaning of the statutory language, however, does not suggest such an interpretation. The statute defines coverage, not recovery. Clearly, the statute requires all vehicle liability policies issued in this state to include coverage for damages incurred because of the negligence of uninsured drivers and vehicle owners. Additionally, the required UM coverage must be provided in the same amount as the liability coverage in the policy up to the maximum of $100,000 per person or $300,000 per accident, unless the insured requests more. Other statutes require minimum liability coverage of $25,000 for one person per accident and $50,000 for two or more people per accident. SDCL 32-35-70; see also SDCL 32-35-113 (stating that failure to maintain the minimum automobile liability insurance is a Class 2 misdemeanor). Therefore, in the absence of a request for additional insurance, SDCL 58-11-9 requires that an insurer provide UM coverage between $25,000 and $100,000 for one person per accident and $50,000 and $300,000 for two or more people, depending on the amount of liability coverage in the policy. The plain meaning of the language should not be interpreted to mean that the Legislature intended to set a maximum amount of recovery regardless of the loss or the number of policies.

[¶ 12.] AMCO points to language used by this Court in Union in support of its argument that SDCL 58-11-9 sets a statutory maximum amount of permissible UM recovery. See Union, 454 N.W.2d at 739. The language to which AMCO refers is part of a paragraph in which this Court discussed the public policy applicable to stacking the UM benefits of two policies issued to the same insured by the same insurer. Id. The one sentence taken out of context reads: “This modification of [SDCL 58-11-9 setting a maximum amount of required UM coverage] reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect those insureds who may be legally entitled to recover against an uninsured motorist.” Id. In the context of the entire opinion, however, that sentence should not be read to mean that the Legislature set a mandatory maximum recovery amount merely by requiring all liability policies to include UM coverage. In fact, a close reading of Union reveals that this language was not central to the holding. What was central to the holding was the language of the insurance policy provision, which we determined controlled the outcome. 454 N.W.2d at 739-40. Therefore, to the extent that language in our prior opinions may be read to suggest that SDCL 58-11-9 establishes a public policy which precludes recovery in excess of the mandated amount of coverage, the prior language should not be interpreted as such and is not controlling.

[¶ 13.] Westphal remains the controlling case regarding the type of stacking at issue here. Phen, 2003 SD 133, ¶¶ 28, 37-38, 672 N.W.2d at 59, 61 (Zinter, J., concurring). There we held that stacking of UM benefits for two different vehicles insured by two different policies was not precluded by statute. Id. ¶¶ 20-22, 672 N.W.2d at 58-59. Unless the parties have clearly and unambiguously limited such stacking by contract, it is not precluded.

[¶ 14.] In the evolution of our stacking jurisprudence, the language of the individual policies was an important factor. In this case, however, AMCO does not rely upon its policy provisions. AMCO clearly points out in its brief that it is not attempting to avoid liability based on policy language in either the “other insurance” or UM coverage portions of the policy. In fact, the summary judgment motion makes no mention of the contract between the insured and insurer. AMCO relies strictly on the language of SDCL 58-11-9 and urges this Court to hold that the statutory language, in and of itself, limits stacking of UM coverage to the statutory amount of $100,000/$300,000. We decline to do so. We have clearly stated that the statutory amounts are only limiting if the insurer has stated the limits “in dear and unambiguous terms.” Union, 454 N.W.2d at 738 (emphasis added). Whether or not AMCO’s policy with Hocketts contains clear and unambiguous terms of limitation is not before this Court, nor was it argued to the trial court as part of the summary judgment motion. We agree with the trial court that Westphal and Phen allow the stacking here, and we hold that the limits for UM coverage established in SDCL 58-11-9 do not per se prohibit stacking UM coverage in excess of the statutory amount.

[¶ 15.] Affirmed.

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

[¶ 17.] ZINTER, Justice, concurs specially.

ZINTER, Justice

(concurring specially).

[¶ 18.] I fully concur in the Court’s opinion. I write only to emphasize that this Court’s opinions in Westphal, 87 S.D. 404, 209 N.W.2d 555; Union, 454 N.W.2d 736; and Phen, 2003 SD 133, ¶¶ 28-41, 672 N.W.2d 52, 59-62 (Zinter, J., concurring in result), only considered whether certain UM policy limitations were prohibited by SDCL 58-11-9, the statute mandating UM coverage. However, policy limitations are concededly not at issue in this case. Therefore, the language of my concurring opinion in Phen should not be used to suggest that SDCL 58-11-9 precludes stacking when an insurer does not rely upon a policy limitation.

      . SDCL 58-11-9.8 provides:
      Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the insured’s policy, or premiums paid, in no event may the limit of liability for uninsured motorist coverage for two or more of the insured's motor vehicles be added together to determine the limit of insurance coverage available to an injured person for any one accident.
      SDCL 58-11-9.9 provides:
      Regardless of the number of policies involved, vehicles involved, persons covered, claims made, vehicles or premiums shown on the insured’s policy, or premiums paid, in no event may the limit of liability for underinsured motorist coverage for two or more of the insured’s motor vehicles be added together to determine the limit of insurance coverage available to an injured person for any one accident.

      . Union Insurance Co. v. Stanage came before this Court subsequent to the 1982 amendment setting coverage amounts. 454 N.W.2d at 736. The facts at issue in Union arose one month before the relevant anti-stacking statute, SDCL 58-11-9.8, discussed infra at ¶ 20, took effect. Union, 454 N.W.2d at 738. The issue in Union was whether the insured could stack UM coverage in two policies of insurance issued to the insured by the same insurer. Id. at 737. Both of Union’s policies contained clauses limiting its maximum liability to $100,000 per person per accident in clear, unambiguous terms. Id. at 738. We said:
      In resolving the issue of whether [an insured] should be allowed to stack [UM] coverages ... the determinative factor must be the apparent policy of our state legislature. By enacting SDCL 58-11-9, our legislature clearly sought to provide protection to certain insureds who may be legally enti-tied to recover against uninsured motorists. Subsequent to our decision in Westphal, the legislature amended this statute by providing a maximum amount of uninsured motorist coverage that an insurer could provide to an insured absent a request for additional coverage by the insured. This modification of the statute reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect those insureds who may be legally entitled to recover against an uninsured motorist.

        Id. at 739 (citations omitted). Despite our explanation of the meaning of SDCL 58-11-9, we relied solely on the language of the insurance policy in determining that stacking was not allowed. Id. at 739. We stated:
      [The insurer limited] its liability in clear and unambiguous terms. In both policies, [the insurer] specifically stated:
      The limit of liability shown in the Declarations for "each person” for Uninsured Motorist Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one accident.
      (Emphasis added). The limit of liability for uninsured motorist coverage is the same on each declaration sheet, that is, $100,000 per person. Thus, the clear import of the "limit of liability” clause in each policy is that [the insurer] will not provide uninsured motorist benefits in an amount exceeding $100,000 per person for damages sustained in any one accident involving an uninsured motorist, irrespective of the vehicles covered or policies issued to [the insured] by [the insurer]. The clear meaning of this limiting language should be given effect considering the fact that [the insured] satisfied the apparent policy of the legislature by providing Stanage with the maximum amount of uninsured motorist coverage as set forth by the statute.

        Id. at 739-40 (footnote omitted). Thus, we reasoned that because the insurer provided the amount of UM coverage dictated by SDCL 58-11-9, it satisfied the purpose of that statute and was "free to limit its total liability to that maximum amount in a subsequent policy issued to the same insured.” Id. at 739.