text:
    2001 ND 21
    Orlyn WANSTROM, Claimant and Appellant, v. The NORTH DAKOTA WORKERS COMPENSATION BUREAU, Appellee, and City of Bismarck, Respondent.
    No. 20000187.
    Supreme Court of North Dakota.
    Feb. 2, 2001.

      Kathryn L. Dietz, Dietz, Little & Haas, Bismarck, ND, for claimant and appellant.
    Brent J. Edison, Special Assistant Attorney General, North Dakota Workers Compensation Bureau, Bismarck, ND, for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Orlyn Wanstrom appealed from a district court judgment affirming a North Dakota Workers Compensation Bureau denial of Wanstrom’s claim for disability benefits. The Bureau concluded Wanstrom’s employment as a firefighter was not a substantial contributing factor in the causation of his lung disease, therefore the N.D.C.C. § 65-01-02(18)(d) presumption his lung condition was suffered in the line of duty was successfully rebutted and Wanstrom did not have a compensable injury. We conclude reasoning minds reasonably could not have determined the presumption was rebutted by the weight of the evidence from the entire record and we reverse and remand.

I

[¶ 2] Wanstrom was a firefighter with the City of Bismarck from May 1, 1974, until June 30, 1997. Wanstrom was exposed to smoke regularly in his work as a firefighter, however, he never required medical treatment for smoke inhalation. Wanstrom smoked cigarettes, approximately one to one-and-a-half packs per day for 30 years. Dr. Monica T. Paulo examined Wanstrom on June 6, 1997. Dr. Pau-lo diagnosed Wanstrom with chronic obstructive pulmonary disease (“COPD”) and stated Wanstrom was at risk for further exposure to smoke or other inhalants. On June 30, 1997, the City of Bismarck placed Wanstrom on medical leave.

[¶ 3] On July 3,1997, Wanstrom filed a claim with the Bureau seeking application of the presumption in N.D.C.C. § 65-01-02(18)(d) (1995). If applicable, the statute would presume Wanstrom’s lung condition was suffered in the line of duty. N.D.C.C. § 65 — 01—02(18)(d) (1995). The Bureau held because Wanstrom filed his claim after July 1, 1997, he was subject to N.D.C.C. § 65-01-15, a statute enacted by the legislature in 1995 to confine the occupational-lung disease presumption to nonsmokers. Therefore, the Bureau concluded Wanstrom was prohibited from using the presumption under N.D.C.C. § 65-01-02(18)(d). Wanstrom appealed and this Court held the Bureau erred as a matter of law by concluding the application date was dispositive instead of the injury date; therefore Wanstrom was entitled to the presumption his lung disease was suffered in the line of duty. Wanstrom v. North Dakota Workers Comp. Bureau, 2000 ND 17, ¶ 9, 604 N.W.2d 860. We remanded for additional findings of fact and conclusions of law as to whether the presumption has been successfully rebutted. Id.

[t 4] On remand, the Bureau looked to the administrative law judge’s findings of fact from the previous hearing on October 19, 1998. The Bureau found Wanstrom’s employment as a firefighter for 23 years was not a substantial contributing factor in the causation of his lung disease. Therefore, the Bureau concluded the presumption was successfully rebutted and Wan-strom’s injury was not compensable. The district court affirmed the Bureau’s decision.

II

[¶ 5] On appeal from a judgment involving the decision of an administrative agency, we review the decision of the agency and our review is limited to the record before the agency. Tangen v. North Dakota Workers Comp. Bureau, 2000 ND 135, ¶ 9, 613 N.W.2d 490. Under N.D.C.C. §§ 28-32-19 and 28-82-21, we affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, its decision is not in accordance with the law or violates the claimant’s constitutional rights, or its rules or procedure deprived the claimant of a fair hearing. Negaard-Cooley v. North Dakota Workers Comp. Bureau, 2000 ND 122, ¶ 7, 611 N.W.2d 898. We exercise restraint in determining whether the Bureau’s findings of fact are supported by a preponderance of the evidence and do not make independent findings or substitute our judgment for that of the Bureau, but determine only whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record. Renault v. North Dakota Workers Comp. Bureau, 1999 ND 187, ¶ 16, 601 N.W.2d 580. On the other hand, questions of law, including the interpretation of a statute, are fully reviewable by this Court. Wanstrom v. North Dakota Workers Comp. Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860.

Ill

[¶ 6] Claimants seeking workers compensation benefits generally must prove by a preponderance of the evidence they have suffered a compensable injury in the course of employment. Elter v. North Dakota Workers Comp. Bureau, 1999 ND 179, ¶ 15, 599 N.W.2d 315. A compensable injury includes any disease fairly traceable to the worker’s employment. N.D.C.C. § 65 — 01—02(9)(a)(1) (1995). A disease is fairly traceable to employment if there is a direct causal connection between work conditions and the disease. N.D.C.C. § 65-01-02(18)(a) (1995). A worker’s employment need not be the sole cause of the disease, and it is sufficient if a work condition is a substantial contributing factor to the disease. McDaniel v. North Dakota Workers Comp. Bureau, 1997 ND 154, ¶ 12, 567 N.W.2d 833.

[¶ 7] In claims involving firefighters, however, a condition or impairment of health caused by lung or respiratory disease is presumed to have been suffered in the line of duty. N.D.C.C. § 65 — 01—02(18)(d) (1995). The presumption shifts the burden of going forward with evidence and the burden of persuasion from the claimant to the Bureau. Sunderland v. North Dakota Workmen’s Comp. Bureau, 370 N.W.2d 549, 552 (N.D. 1985). Therefore, under the North Dakota view of presumptions, the Bureau is required to prove the nonexistence of the presumed fact is more probable than its existence. Id. In this case, the presumed fact is Wanstrom’s work as a firefighter was a substantial contributing factor in the development of his lung disease. As we explained in Flermoen v. North Dakota Workers Comp. Bureau, 470 N.W.2d 220, 222 (N.D.1991), the presumption’s purpose is to reheve firefighters of the nearly impossible burden of proving firefighting actually caused their disease. Under the firefighter presumption, “[a] worker’s employment need not be the sole cause of the disease,” and “just because personal habits make a worker more prone to certain injuries does not mean the Bureau can deny a claim when the evidence indicates with reasonable medical certainty that work conditions are causally connected to the particular injury.” McDaniel, 1997 ND 154, ¶ 12, 567 N.W.2d 833 (noting McDaniel smoked between one-half and two packs of cigarettes per day for over thirty years). Therefore, it is not sufficient for the Bureau to show smoking was the more likely cause of Wanstrom’s lung disease, instead the Bureau must prove Wanstrom’s exposure to smoke on the job was not a substantial contributing factor to his disease.

[¶ 8] On remand, the Bureau found the greater weight of the evidence indicates Wanstrom’s employment was not a substantial contributing factor in the development of his COPD. The Bureau based this finding on testimony of two medical experts, as summarized in paragraph two of the findings of fact.

The Bureau finds a great deal of consistency between the opinions of Drs. Paulo and Mulro[o]ney. Both doctors made a strong causal connection between the Claimant’s smoking and his COPD. Neither doctor could point to an established causal connection between firefighting and COPD. Both doctors found it significant that the Claimant had never been treated for smoke inhalation. Both doctors recognized smoking as the predominant risk factor for COPD. In conclusion, the testimony of both doctors, taken as a whole, eliminates the Claimant’s work as a firefighter as a substantial contributing factor in the causation of his COPD. In addition, the testimony of both doctors resolves any arguable conflicts arising from Dr. Paulo’s description of Claimant’s COPD as being “multifactorial.”

[¶ 9] Both physicians testified smoking is a major cause of COPD and both also agreed it was significant that Wanstrom had never required medical treatment following smoke inhalation at a fire. However, the record does not support the Bureau’s finding that, taken as a whole, the testimony of both doctors eliminates Wan-strom’s work as a firefighter as a substantial contributing factor in the causation of his COPD or resolves conflicts arising from Dr. Paulo’s description of Wan-strom’s COPD as multifactorial. The Bureau failed to address the agreement of both experts that COPD can be multifacto-rial and usually COPD develops later than at the young age of 44, even among smokers. Dr. Paulo stated it was unusual, even for a smoker, to develop COPD at age 44 without some other predisposing factor. In fact, both experts testified inhalation of smoke or toxic fumes could be a contributing factor to chronic lung disease. Also, the Bureau did not address the fact Wanstrom was regularly exposed to smoke as is normal for firefighters, as testified by a co-worker, Mr. Thomas Biwer:

Q. [Wanstrom’s attorney] I’ll try to come back to the question I asked. It was regarding the degree of exposure to smoke during those years, and I was trying — if it was possible, I was trying to define more specifically what “not unusual” meant in terms of quantifying it. And I’m not asking you for specific fires.
A. [Mr. Biwer] Perhaps his — his rate of exposure would have been the same as anyone else, any other member of the fire department.
Q. Which would be what?
A. It’s part of the job. It’s something that happens when you go to fires.
Q. So it happens—
A. It happens regularly.

Additionally, protective masks were not commonly used until the early 1990s and Wanstrom began his work as a firefighter in 19Y4. The list of fires attended by Wanstrom included both outdoor and indoor fires, involving a variety of substances.

[¶ 10] Although Dr. Thomas F. Mul-rooney testified Wanstrom’s occupational smoke exposure was not a substantial contributing factor in the development of his lung disease, Dr. Paulo, Wanstrom’s treating physician, could not rule out occupational smoke exposure as a substantial contributing factor to Wanstrom’s lung disease. In fact, she said she could not delineate what role the smoke exposure had in the development of Wanstrom’s disease.

[¶ 11] Taken as a whole, the weight of the evidence does not support the Bureau’s finding firefighting was eliminated as a substantial contributing factor to Wan-strom’s lung disease.

[¶ 12] The presumption, enacted to relieve claimants from the nearly impossible burden of proving firefighting actually caused their disease, may appear to create a nearly impossible burden for the Bureau to prove the negative, that is, to prove the nonexistence of a substantial contributing factor to the causation of a disease. However, it has not been an impossible burden. In Burrows v. North Dakota Workers’ Comp. Bureau, 510 N.W.2d 617 (N.D.1994), the Bureau successfully rebutted the presumption for law enforcement officers. Burrows was a police officer for 31 years, had a 40-year history of smoking, and developed lung cancer. Id. at 617. Based on the medical opinions of two experts, including the treating physician, this Court held a reasoning mind could have reasonably determined Burrow’s lung cancer was caused by his smoking and not by his occupation. Id. at 619. In contrast to Wanstrom, Burrows was not exposed to smoke, in fact, there was no evidence of exposure to cancer-causing agents on the job and there was no evidence showing a risk of lung cancer from police work. Id.

[¶ 13] The presumption was also successfully rebutted in Elter v. North Dakota Workers Comp. Bureau, 1999 ND 179, ¶ 2, 599 N.W.2d 315 a case of a police officer who had smoked one to one-and-a-half packs of cigarettes per day for approximately 30 years and developed lung cancer. Elter had not smoked for the last 15 years and claimed the cancer may have been caused by his exposure to asbestos and radon during his employment as a highway patrol officer. Id. at ¶¶ 2, 4. However, because no credible evidence established the levels of radon in the courthouse or how frequently Elter worked in the courthouse, and none of the experts could determine whether Elter’s carcinogen exposure in the work place increased the relative risk in developing cancer, the presumption his occupation was a substantial contributing factor to his lung cancer was successfully rebutted. Id. at ¶¶ 19-21.

[¶ 14] In Sunderland v. North Dakota Workmen’s Comp. Bureau, 370 N.W.2d 549, 554 (N.D.1985), the Bureau failed to rebut the presumption Sunderland’s 36 years as a police officer substantially contributed to the development of his lung cancer. Sunderland had smoked one pack of cigarettes per day for 40 years. Id. at 553. The Bureau relied on the physician’s statement “his occupation in no way, as far as we know, contributed to this difficult illness.” Id. [Emphasis added in Sunder-land ]. This Court held the weight of the evidence did not support this finding, additionally, the Bureau erred as a matter of law in concluding it was Sunderland’s burden to establish the link between his cancer and occupation, defeating the purpose of the presumption. Id. at 553-54.

[¶ 15] Recently, however, we further clarified the strength of the presumption when we held the presumption was not successfully rebutted by expert opinion that merely denied the premise that served as the basis for the legislative enactment of the presumption. Robertson v. North Dakota Workers Comp. Bureau, 2000 ND 167, ¶ 1, 616 N.W.2d 844. Robertson was a police officer who developed heart disease. Id. at ¶ 2. Robertson was entitled to the presumption his heart disease occurred in the line of duty. Id. at ¶ 28. The Bureau argued this presumption was rebutted by expert testimony which purported stress of work was not a risk factor for heart disease. Id. at ¶ 36-37. We held expert medical opinion rejecting the legislatively adopted premise of the presumption is insufficient to rebut the presumption. Id. at ¶ 40. In Robertson, we quoted the explanation given by the Minnesota Supreme Court in Swanson v. City of St. Paul, 526 N.W.2d 366, 368 (Minn.1995):

Certainly, causation in heart cases is difficult enough to determine by applying medical theory to observable facts, but the difficulty is compounded by the persisting split in medical theory itself on the relation of stress and heart disease. That, however, is not a matter for the courts to consider where the legislature has decided that work common to certain occupations contributes causally to named diseases when the pre-employment physical examination evinces the absence of the disease at that time. Consequently, when there is evidence that a claimant performed the work common to the occupation named in the statute or when the nature of the work done is undisputed, legal causation is established.

[¶ 16] Analogous to the presumption for law enforcement officers in Robertson, we agree the legislature’s enactment of the firefighter presumption represents a legislatively adopted premise that smoke exposure of firefighters causes lung disease. In Robertson, the Bureau concluded expert testimony, that denied that the work stress of law enforcement affects risk factors and causes heart disease, successfully rebutted the presumption. Id. at ¶ 37. We disagreed, holding the effect of the presumption would be defeated if it could be rebutted by expert medical opinion generally denying the validity of the legislatively enacted premise that work stress causes heart problems. Id. at ¶ 40. We therefore concluded expert medical opinion that denies the underlying premise of a causal relationship between a law enforcement officer’s work stress, including the claimant’s predisposition to risk factors, and heart disease is insufficient to rebut the presumption the heart disease was suffered in the line of duty. Id.

[¶ 17] The Bureau relied on Dr. Mul-rooney’s testimony in this case to rebut the presumption. Dr. Mulrooney testified smoke inhalation on the job was not a substantial contributing factor to Wan-strom’s lung disease. This opinion was based on the lack of any severe exposure to smoke or toxic fumes which required medical care. Also, Dr. Mulrooney testified the fires Wanstrom was exposed to in his 23 years of firefighting were primarily outdoors and did not contain toxic substances which could have contributed to his developing lung disease.

[¶ 18] Dr. Mulrooney agreed COPD could be multifactorial and usually developed later than the age of 44, even among smokers. Despite evidence of smoke exposure on the job, Dr. Mulrooney testified Wanstrom’s job as a firefighter was not a substantial contributing factor to his lung disease. Therefore, Dr. Mulrooney, by deciding regular smoke exposure of a firefighter was not a substantial contributing factor to that firefighter’s lung disease, was denying the underlying premise that served as the basis for the legislative enactment of the firefighter presumption in N.D.C.C. § 65 — 01—02(18)(d). Dr. Mulroo-ney interpreted the premise to require severe exposure in order to establish a causative link as a substantial contributing factor, in contrast to the legislative premise that regular smoke exposure of firefighters causes lung disease. Reliance on this denial of the legislative premise is illustrated by the statement in the Bureau’s finding of fact, “[n]either doctor could point to an established causal connection between firefighting and COPD.” Similar to the denial of work stress as a causative factor for heart disease in Robertson, Dr. Mulrooney’s rejection of regular smoke exposure as a substantial causative factor for lung disease is insufficient to rebut the presumption that Wanstrom’s lung disease was suffered in the line of duty. See Robertson, 2000 ND 167, ¶ 40, 616 N.W.2d 844.

[¶ 19] We conclude the expert medical opinions were legally insufficient to rebut the firefighter presumption. We hold the Bureau did not meet its burden of rebutting the presumption Wanstrom’s lung disease was suffered in the fine of duty.

[IT 20] We reverse the judgment and remand the matter to the district court for entry of a judgment reversing the Bureau’s order and remanding the matter for the Bureau to award Wanstrom appropriate benefits.

[¶ 21] WILLIAM A. NEUMANN, MARY MUEHLEN MARING, JJ., WILLIAM W. McLEES, JOHN E. GREENWOOD, D.JJ., concur.

[¶ 22] WILLIAM W. McLEES, D.J., and JOHN E. GREENWOOD, D.J., sitting in place of KAPSNER, J., and SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2001 ND 20
    Paul KAUTZMAN and Susan Kautzman, Plaintiffs and Appellants, v. Cass County Deputy Sheriff Gregory McDONALD; Cass County Deputy Sheriff Jeff Olson; Cass County, North Dakota; State of North Dakota; North Dakota Highway Patrolman Mitchell Rumple; North Dakota Highway Patrolman Gary Odegard, Defendants and Appellees. City of Fargo, and Fargo City Policeman Al Dienslake, Defendants.
    No. 20000156.
    Supreme Court of North Dakota.
    Feb. 2, 2001.

      Jonathan T. Garaas, Garaas Law Firm, Fargo, ND, for plaintiffs and appellants.
    Angela Elsperger Lord, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, ND, for defendants and appellees Cass County Deputy Sheriff Gregory McDonald; Cass County Deputy Sheriff Jeff Olson; Cass County, North Dakota.
    Douglas A. Bahr, Solicitor General, Attorney General’s Office, Bismarck, ND, for defendants and appellees State of North Dakota; North Dakota Highway Patrolman Mitchell Rumple; North Dakota Highway Patrolman Gary Odegard.
   MARING, Justice.

[¶ 1] Paul and Susan Kautzman appealed from judgments dismissing their tort action, arising from the shooting deaths of their five dogs, against Cass County Deputy Sheriffs Gregory McDonald and Jeff Olson in their official capacities; North Dakota Highway Patrolmen Mitchell Rumple and Gary Odegard in their official capacities; Cass County; and the State. We conclude the trial court properly dismissed the action against the highway patrolmen and the State for failure to timely file a notice of claim with the director of the Office of Management and Budget. We also conclude the trial court did not err in dismissing the Kautzmans’ claim for intentional infliction of emotional distress because the defendants’ conduct, as a matter of law, could not reasonably be regarded as extreme and outrageous. However, we conclude the trial court erred in dismissing the negligence claim against the deputy sheriffs and Cass County because genuine disputes of material fact exist which preclude summary judgment. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶ 2] The Kautzmans owned four German Shepherds and one Golden Retriever cross-breed which they kept as family pets on their three-acre tract of land in Cass County. During the early morning hours of February 19, 1999, the dogs escaped through a fence from the Kautzmans’ yard. Police received several phone calls about the wandering dogs from concerned area residents. The dogs were eventually shot to death by law enforcement officers as the dogs were beginning to roam into Fargo city limits.

[¶ 3] In a complaint dated August 10, 1999, the Kautzmans sued the State, the County, Deputy Sheriffs McDonald and Olson, and Highway Patrolmen Rumple and Odegard for the destruction of their dogs. The Kautzmans alleged the actions of the law enforcement officers violated a Cass County ordinance and state statutes. They sought more than $50,000 in damages for the defendants’ “intentional, wrongful, negligent, grossly negligent, and/or wilful acts,” and for intentional infliction of emotional distress.

[¶4] The State, Rumple and Odegard moved for dismissal of the complaint under N.D.R.Civ.P. 12. The trial court granted the motion, concluding dismissal was required because the Kautzmans failed to present a notice of claim to the director of the Office of Management and Budget within 180 days after the alleged injury was discovered or reasonably should have been discovered. The County, McDonald and Olson later moved for summary judgment of dismissal under N.D.R.Civ.P. 56. The trial court granted the motion, concluding the statutes and ordinance relied on by the Kautzmans did not impose an affirmative duty on the law enforcement officers to not shoot the dogs. The court also dismissed the claim for intentional infliction of emotional distress, concluding the deputies’ actions, as a matter of law, did not meet the threshold requirement of extreme and outrageous conduct. The court also awarded the County and the deputies $1,262.10 for their costs and disbursements. The Kautzmans appealed.

II

[¶ 5] The Kautzmans argue the trial court erred in dismissing their lawsuit in its entirety because they have sued the highway patrolmen, as well as the deputy sheriffs, not only in their official capacities, but also in their individual capacities.

[¶ 6] The Kautzmans’ complaint does not contain the terminology, “official capacity,” “individual capacity” or “personal capacity,” which is ordinarily used when a plaintiff seeks to hold a government employee liable in an official or individual capacity. Although we have declined to require capacity stipulations in a complaint, see Burr v. Kulas, 532 N.W.2d 388, 392 (N.D.1995), capacity stipulations do clarify a plaintiffs intentions. See, e.g., Kristensen v. Strinden, 343 N.W.2d 67, 71-73 (N.D.1983). From our examination of the complaint in this case, we conclude it does not state claims against the law enforcement officers in their individual capacities.

[¶ 7] The complaint names as defendants the State, the County, and the four law enforcement officers, each preceded by their official government title of either “Highway Patrolman” or “Deputy Sheriff.” The body of the complaint prefaces allegations against the law enforcement officers with their official titles, and alleges each of them was either a highway patrolman or deputy sheriff “at all times pertinent to this Complaint.” The complaint does not allege the law enforcement officers acted outside the scope of their employment at any time.

[¶ 8] One paragraph of the 23 paragraph complaint summarily alleges the defendants committed “intentional, wrongful, negligent, grossly negligent, and/or wilful acts.” Acts of gross negligence and willful or wanton misconduct can render a state or county employee personally liable. See N.D.C.C. §§ 32-12.1-04(3) and 32-12.2-01(6). See also Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 34, 576 N.W.2d 505; Wishnatsky v. Bergquist, 550 N.W.2d 394, 403 (N.D.1996). However, the Kautzmans have also sought damages for intentional infliction of emotional distress, a tort which requires extreme or outrageous conduct that is intentional or reckless. See Hougum v. Valley Memorial Homes, 1998 ND 24, ¶ 26, 574 N.W.2d 812. Because these allegations could relate to the Kautz-mans’ claim against the defendants in their official capacities for intentional infliction of emotional distress, see Dimond v. State ex rel. Bd. of Higher Educ., 1999 ND 228, ¶ 23, 603 N.W.2d 66 we do not view these allegations as indicative of an intention to sue the law enforcement officers in their individual capacities.

[¶ 9] Construing the complaint as a whole, we conclude it states claims against the law enforcement officers in their official capacities only, and not in their individual capacities.

III

[¶ 10] The Kautzmans argue the trial court erred in concluding their notice of claim against the State and the highway patrolmen was not timely filed with the director of the Office of Management and Budget.

[¶ 11] Before an action can be brought against the State or one of its employees, N.D.C.C. § 32-12.2-04(1) requires the plaintiff to give timely notice of the claim:

A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably should have been discovered a written notice stating the time, place, and circumstances of the injury, the names of any state employees known to be involved, and the amount of compensation or other relief demanded.

In Earnest v. Garcia, 1999 ND 196, ¶ 6, 601 N.W.2d 260, we said this “statute requires written notice of a claim; actual notice is insufficient.” See also Allied Mut. Ins. Co. v. Director of North Dakota Dept. of Transp., 1999 ND 2, ¶ 10, 589 N.W.2d 201; Messiha v. State, 1998 ND 149, ¶ 21, 583 N.W.2d 385. Absent the timely filing of a notice of claim against the state or one of its employees, the court lacks subject matter jurisdiction to entertain the lawsuit. Dimond, at ¶ 26; Earnest, at ¶ 7. Contrary to the Kautzmans’ argument, nothing in the statute’s language or in the legislative history of its 1997 amendment suggests the creation of a dual administrative and legal procedure which makes the 180 day period applicable only in an administrative context. See Cooke v. University of North Dakota, 1999 ND 238, ¶¶ 11-13, 603 N.W.2d 504.

[¶ 12] If the jurisdictional issue is intertwined with the merits of the case, a N.D.R.Civ.P. 12 motion should be addressed using N.D.R.Civ.P. 56 standards. Allied, at ¶ 5 n. 1. The Kautzmans’ dogs were shot on February 19, 1999, and they filed a notice of claim with the director of the Office of Management and Budget on September 3, 1999, more than 180 days after the dogs were shot. The Kautzmans argue the 180 days should not begin to run until all elements of the tort have been discovered by the plaintiff. In this case, the Kautzmans argue they did not know they had a cause of action until May 20, 1999, after receiving a copy of an investigation report prepared by the Bureau of Criminal Investigation indicating to the Kautzmans Deputy Sheriff McDonald “falsely reported” the distance from which he shot and killed the first dog.

[¶ 13] We reject the Kautzmans’ argument. First, the investigation report names only Deputy Sheriff McDonald and the gun he used to shoot the lead dog. McDonald is not a state employee dismissed by the court for failure to comply with the 180 day notice of claim requirement. Moreover, the record reveals the Kautzmans were aware of the defendants’ involvement within days, if not hours, of the shootings. The Kautzmans were either given, or were given access to, the law enforcement officers’ reports of the incident. Paul Kautzman began conducting his own investigation of the incident the day after the shootings and formed the opinion law enforcement officers were not telling the truth. The Kautzmans had knowledge of a potential claim against the defendants shortly after the dogs were killed, and the investigation report merely confirmed their suspicions. The Kautz-mans had sufficient time to comply with the notice of claim requirement. Indeed, the complaint is dated August 10, 1999, prior to the expiration of the 180 day period. This is not a case in which the plaintiffs were without the means of learning of their cause of action until more than 180 days after suffering an injury. Although an Assistant Attorney General admitted service of the complaint on August 13, 1999, before expiration of the 180 day period, the record shows the Kautzmans did not deliver a copy of the complaint to the director of the Office of Management and Budget as required by N.D.C.C. § 32-12.2-04(5) until September 3, 1999, after the period had expired. We therefore need not consider whether providing a copy of the complaint to the director of Management and Budget within the 180 day period satisfies the notice of claim requirement. See Annot., Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions, 45 A.L.R. 5th 109 (1997).

[¶ 14] We conclude the trial court did not err in dismissing the action against the State and Highway Patrolmen Rumple and Odegard for failure to file a timely notice of claim with the director of the Office of Management and Budget.

IV

[¶ 15] The Kautzmans argue the trial court erred in granting summary judgment dismissal of its claims against Cass County and Deputy Sheriffs McDonald and Olson.

[¶ 16] Summary judgment under N.D.R.Civ.P. 56 is a method for promptly and expeditiously disposing of a controversy, without trial, if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual issues would not alter the results. Mead v. Farmers Union Mut. Ins. Co., 2000 ND 139, ¶ 12, 613 N.W.2d 512. The evidence must be viewed in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which can reasonably be drawn from the evidence. Stanley v. Turtle Mountain Gas & Oil, Inc., 1997 ND 169, ¶ 6, 567 N.W.2d 345. Issues of fact may become issues of law if reasonable persons could reach only one conclusion from the facts. Mandan Educ. Ass’n v. Mandan Public School District No. 1, 2000 ND 92, ¶ 6, 610 N.W.2d 64.

A

[¶ 17] The Kautzmans contend their claim for intentional infliction of emotional distress was improperly dismissed on summary judgment.

[¶ 18] The elements of a tort action for the intentional infliction of emotional distress are extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress. Hummel v. Mid Dakota Clinic, P.C., 526 N.W.2d 704, 710 (N.D.1995). The “extreme and outrageous” threshold is narrowly limited to conduct that exceeds “all possible bounds of decency,” and which would arouse resentment against the actor and lead to an exclamation of “Outrageous” by an average member of the community. Muchow v. Lindblad, 435 N.W.2d 918, 924 (N.D.1989).

[¶ 19] The court must initially decide whether a defendant’s conduct reasonably may be regarded as “extreme and outrageous.” Hougum, at ¶ 26. If reasonable people could differ, a plaintiff is entitled to have the trier of fact determine whether the conduct is sufficiently extreme and outrageous to result in liability. Security Nat. Bank, Edgeley v. Wald, 536 N.W.2d 924, 927 (N.D.1995).

[¶ 20] The defendants presented evidence that McDonald responded to a call from a woman who reported five dogs were circling her house and she was unable to leave her residence. While McDonald was at the residence, additional calls about the dogs were made to law enforcement, including the highway patrol. McDonald drove to Rumple’s location, where they saw the dogs roaming into Fargo city limits. McDonald called to alert the Fargo Police Department, and agreed to watch the dogs while the animal control unit was en route. After following the dogs, McDonald stopped, got his weapon, and stood by a house under construction. One of the dogs spotted McDonald and started barking and running toward him. The other four dogs followed and McDonald believed the dogs were on the attack. McDonald shot the first dog, and the other dogs stopped, turned, and began traveling in another direction. McDonald again contacted the Fargo Police Department and said the dogs were aggressive and he feared for the safety of people in the area. Olson and other law enforcement officers arrived, and it was decided the dogs needed to be contained. Olson and other officers shot the remaining four dogs, some from a distance of several hundred yards.

[IT 21] The Kautzmans presented evidence that the dogs were not normally allowed to run at large or unrestrained and, upon discovering the dogs were missing, they unsuccessfully searched for them. According to the Kautzmans, they had never known the dogs “to act in a vicious manner toward any animal or human being.” The Kautzmans alleged in an affidavit:

Unknown to us, the four (4) German Shepards and one (1) Golden Retriever (cross) were located by Defendant Cass County Deputy Sheriff Greg McDonald who falsely reported that he had been “attacked” by the five dogs running in a pack, and that the five dogs were “vicious.” He also falsely reported that it was necessary to shoot the lead dog, later claiming such shooting occurred while the lead dog was only 20 feet away, which was not true. Bluntly, the ballistics and blood indicate a distance in excess of 65 feet separated Deputy Sheriff Gregory McDonald and the dogs, clearly different than McDonald’s ever-changing self-serving account. The injuries to the first dog, personally observed by Paul Kautzman, are impossible from a distance less than 65 feet, and in addition, the injuries are not consistent with a dog headed toward the deputy-
After Defendant Cass County Deputy Sheriff Greg McDonald had shot one of the five dogs, Defendant Cass County Deputy Sheriff Jeff Olson, and other law enforcement officers ... proceeded to shoot the remaining four dogs owned by the Plaintiffs in rural Cass County, North Dakota, utilizing a high-powered rifle and their service handguns. This was admitted by the Defendants, and to begin with, involved distances involving hundreds of yards separation from animal to the closest human being.

The Kautzmans further allege they “continue to agonize over the needless pain and suffering experienced by loved ‘members of our household.’ ”

[¶ 22] We agree with the trial court that the law enforcement officers’ actions could not reasonably be interpreted as extreme and outrageous within the parameters of the tort of intentional infliction of emotional distress. There is no dispute that the officers were unaware the dogs belonged to the Kautzmans, and therefore they could not have intended the Kautz-mans any harm. There is also no dispute that the officers were responding to calls from concerned citizens. The major dispute appears to be the distance from which the dogs were shot, and whether the shootings were actually necessary. These circumstances are simply insufficient to constitute extreme and outrageous conduct on the part of the law enforcement officers. Moreover, the Kautzmans’ bald allegation that they “continue to agonize” over the loss of their dogs is insufficient to meet the requirement of severe emotional distress.

[¶ 23] We conclude the trial court did not err in dismissing the Kautzmans’ claim for intentional infliction of emotional distress.

B

[¶ 24] The Kautzmans argue the trial court erred in granting summary judgment dismissal of their tort action against Cass County and the deputy sheriffs.

[¶25] To support their action, the Kautzmans relied on Cass County Government Ordinance # 1998-3, which prescribes penalties for persons who willfully “[tjorment, torture, abuse, cruelly kill or otherwise inflict cruelty upon an animal or bird.” They also relied on N.D.C.C. § 36-21.1-06(1), which allows law enforcement officers to take custody of and care for abandoned animals, and N.D.C.C. § 36-21.1-02(7), which provides “[n]o person may willfully instigate, or in any way further, any act of cruelty to any animal or animals, or any act tending to produce such cruelty.” The trial court concluded, as a matter of law, the Kautzmans were “not of a class of persons to be protected by the statutes or ordinance because they do not provide for civil liability,” and therefore, the defendants “owed no duty” to the Kautzmans.

[¶26] Although we agree with the trial court that the ordinance and state statutes do not provide the basis for a private right of action, the court’s reasoning is flawed. The case relied on by the court, Keyes v. Amundson, 391 N.W.2d 602, 608 (N.D.1986), held “before the violation of an ordinance may be considered as evidence of negligence, the court must determine that a purpose of the ordinance was to protect the class of persons injured against the type of injury and harm suffered.” Keyes set forth a standard for determining the admissibility of evidence of negligence, not a standard for determining whether a tort duty exists. Here, the. Kautzmans have alleged their dogs’ deaths resulted “directly and proximately from the intentional, wrongful, negligent, grossly negligent, and/or wilful acts of the Defendants.” This allegation states an action in tort for the death of the Kautzmans’ dogs.

[¶ 27] The owner of a domestic animal which is killed or injured by the negligent or willful act of a third person proximately resulting in that death or injury is entitled to recover for the loss suffered. 3A C.J.S. Animals § 274 (1973); 4 Am.Jur.2d Animals § 142 (1995). This general rule is recognized in North Dakota. See Trautman v. Day, 273 N.W.2d 712 (N.D.1979). See also N.D.C.C. § 36-21-13 (“Exemplary damages may be given to the owner of any animal for any wrongful injury thereto when such injury is committed willfully or by gross negligence.”) The tort cause of action has also been recognized in other jurisdictions. See, e.g., McDaniel v. Johnson, 225 Ark. 6, 278 S.W.2d 657 (1955); Soucy v. Wysocki, 139 Conn. 622, 96 A.2d 225 (1953); Collier v. Hoffman, 482 So.2d 922 (La.App.2d Cir.1986); Wilson v. City of Eagan, 297 N.W.2d 146 (Minn.1980); Frost v. Taylor, 649 S.W.2d 264 (Mo.App.1983); Williams v. Spinola, 50 Or.App. 87, 622 P.2d 322 (1981). As the court stated in City of Garland v. White, 368 S.W.2d 12, 16 (Tex.Civ.App.1963):

Dogs are property and an owner of a dog may recover for its wrongful injury or killing. Although a vicious dog which is a public nuisance may be lawfully killed when it is roaming at large and endangering the safety of persons and property, the general rule is that to justify the killing of a dog in defense of person or property the danger must be imminent and a real or apparent necessity must exist therefor unless there is statutory authority to kill the dog under the circumstances shown.

[¶ 28] Although the evidence presented in the summary judgment motion was insufficient as a matter of law to support the Kautzmans’ action for intentional infliction of emotional distress, we cannot reach the same conclusion about their action for negligence for the shooting deaths of their dogs. Under these factual circumstances, reasonable persons could reach different conclusions about the reasonableness of, and the justification for, the deputies’ actions. We conclude genuine issues of material fact exist which precluded summary judgment on the Kautz-mans’ negligence claim.

C

[¶ 29] Cass County, McDonald and Olson argue summary judgment was nevertheless appropriate because the deputies were performing a discretionary function when they shot the dogs, and they are therefore statutorily immune from suit.

[¶ 30] A political subdivision is exempt under N.D.C.C. § 32-12.1-03(3) from liability for an act or omission of its employees who are performing discretionary functions or duties. We engage in a two-part inquiry when determining whether the discretionary function exception applies: (1) whether the conduct at issue is discretionary, involving an element of judgment or choice for the acting employee; and (2) if the act is discretionary, whether that judgment or choice is of the kind the discretionary function exception was designed to shield. Olson v. City of Garrison, 539 N.W.2d 663, 666-67 (N.D. 1995).

[¶31] In Peterson v. Traill County, 1999 ND 197, ¶9, 601 N.W.2d 268, this Court addressed a political subdivision’s argument that its sheriff and jailers’ decision whether a jail inmate needed immediate medical attention was a discretionary function for which the political subdivision was immune from suit. We ruled that although the decision of the sheriff and jailers involved an element of judgment or choice, the judgment or choice was not of the kind the discretionary function exception was designed to shield:

The primary focus of the second part of the test is on the nature of the actions taken and on whether they are susceptible to policy analysis. Olson, 539 N.W.2d at 667. We explained in Olson, 539 N.W.2d at 667-68 (citations omitted):
The purpose of the discretionary function exception is to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” When properly construed, the exception should shield only governmental action based on public policy considerations. Moreover, public policy considerations, social, economic, or political, must be distinguished from more objective standards based on, for example, scientific, engineering, or technical considerations. The latter are not protected by the discretionary function exception, when the challenged conduct involves nothing more than a “follow the numbers” approach.
No social, economic, or political policy is implicated in deciding whether an inmate has alcohol withdrawal and whether transfer to a medical facility is necessary. Rather, this is an ordinary individualized judgment made by jailers as part of their routine work duties.

Peterson, at ¶¶ 13-14. The same rationale applies in this case.

[¶ 32] The decision whether the Kautzmans’ dogs posed a danger to the deputies or to others, thereby justifying the dogs’ destruction, implicates no social, economic or political policy, and was merely an ordinary individualized judgment made by the deputies as part of their routine work duties. Discretionary function immunity does not shield individualized decisions such as these. See, e.g., Fowler v. Town of Ticonderoga, 131 A.D.2d 919, 516 N.Y.S.2d 368 (1987); Annot., Personal liability of public officer for killing or injuring animal while carrying out statutory duties with respect to it, 2 A.L.R.3d 822, at § 3[d] (1965).

[¶ 33] We conclude the discretionary function exception does not apply in this case.

D

[¶ 34] Because we reverse the summary judgment dismissal of the Kautz-mans’ negligence action against Cass County, and McDonald and Olson in their official capacities, we also reverse the trial court’s award of costs and disbursements against the Kautzmans.

V

[¶ 35] We affirm the dismissal of the State, Rumple and Odegard from the action and the dismissal of the Kautzmans’ claim for intentional infliction of emotional distress. We reverse the dismissal of the Kautzmans’ negligence action against Cass County, and McDonald and Olson in their official capacities, and the court’s award of costs and disbursements against the Kautzmans, and we remand for trial.

[¶ 36] GERALD W. VANDE WALLE, C.J., WILLIAM F. HODNY, S.J., and WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ„ concur.

[¶ 37] The Honorable HODNY, S.J., sitting in place of KAPSNER, J., disqualified.

      . The Kautzmans also sued the City of Fargo and police officer Al Dienslake. The Kautz-mans later stipulated to dismissal with prejudice of its action against the City and Diens-lake.

      . Under Binstock v. Fort Yates Public School District, 463 N.W.2d 837, 842 (N.D.1990), “a political subdivision and its employee may be jointly liable if an employee caused injury while acting within the scope of his employment in a reckless or grossly negligent manner or a willful or wanton manner.”


text:
    2001 ND 18
    David R. BARRERA, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
    No. 20000195.
    Supreme Court of North Dakota.
    Feb. 2, 2001.
    Steven Balaban, Bismarck, ND, for petitioner and appellant.
    Cynthia Mae Feland, Assistant State’s Attorney, Burleigh County Courthouse, Bismarck, ND, for respondent and appel-lee.
   MARING, Justice.

[¶ 1] David Barrera appeals from a trial court’s orders, denying his application for post-conviction relief and denying his motion for reconsideration. Under N.D.R.Crim.P. 32(c)(4)(B), Barrera argues he was denied the opportunity to adequately review his presentence investigation report prior to his sentencing. Barrera failed to raise this issue in his previous application for post-conviction relief. We have previously concluded “it is a misuse of process to raise issues on subsequent post-conviction applications that could have been raised in the initial application.” Clark v. State, 1999 ND 78, ¶ 19, 593 N.W.2d 329. See also Silvesan v. State, 1999 ND 62, ¶ 9, 591 N.W.2d 131; State v. Johnson, 1997 ND 235, ¶ 12, 571 N.W.2d 372; McMorrow v. State, 537 N.W.2d 365 (N.D.1995). We affirm the trial court’s orders.

[¶ 2] VANDEWALLE, C.J., McCLINTOCK, D.J., NEUMANN, KAPSNER, MARING. JJ., concur.

[¶ 3] The Honorable McCLINTOCK, D.J., sitting in place of SANDSTROM, J„ disqualified.

      . “Any disclosure to the defendant of the pre-sentence investigation report ... must occur at least 10 days before sentence is imposed unless this minimum period is waived by the defendant.” N.D.R.Crim.P. 32(c)(4)(B). Under this rule, it is clearly the better practice for the trial court to expressly ask the defendant personally to waive the minimum ten-day period in open court, if a defendant has not received his presentence investigation report at least ten days prior to sentencing.


author: KONENKAMP, Justice

text:
    2001 SD 18
    In the Matter of the ESTATE OF Howard AMUNDSON. In the Matter of the Estate of Margaret Amundson. Albert Van Laar, as personal representative of the Estate of Margaret Amundson, Plaintiff and Appellant, v. David O. Amundson, as personal representative of the Estate of Howard Amundson, Defendant and Appellee.
    Nos. 21015, 21016.
    Supreme Court of South Dakota.
    Argued March 20, 2000.
    Decided Feb. 14, 2001.
    Timothy J. Langley, Sioux Falls, SD and Brian J. Stuart of Stuart, Gerry & Schlim-gen, Sioux Falls, SD, Attorneys for appellant.
    Cheryle Wiedmeier Gering of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for appellee.
   KONENKAMP, Justice

[¶ 1.] Margaret Amundson’s estate challenges the validity of a living trust created for Margaret by her husband at a time when she was mentally incapable of giving consent or exercising the powers the trust conferred. The trust effectively bypassed Margaret’s estate’s right to take her spousal elective share under South Dakota law. We conclude that it violated public policy. As the circuit court came to the opposite conclusion, we reverse and remand.

A.

[¶ 2.] After fifty-four years as husband and wife, Howard and Margaret Amund-son both died in 1998. They had no children together, but Howard had a son, Jerry Amundson, from a previous marriage. Howard and Margaret had invested profitably over the years and owned several businesses in Canton, South Dakota. Margaret had been an active participant in the businesses until her health began to decline. Their combined assets were worth in excess of $1.3 million.

[¶ 3.] In their latter years, Howard and Margaret had an especially close bond with Howard’s nephew, David O. Amundson, the son of Howard’s brother, Owen. Although David had provided assistance to Howard and Margaret on occasion in the past, when David moved back to Canton in 1990, he began providing extensive help, including financial guidance. In 1991, after visiting with a friend about estate planning, Howard obtained material on do-it-yourself wills and trust kits. He asked David for advice. When David reviewed this material nearly two years later, he told Howard that because trusts are complicated an attorney should be consulted to set up an estate plan.

[¶4.] In 1992, Howard and Margaret, both in poor health, began residing at the Canton Good Samaritan Center. On March 27, 1992, Margaret gave David a financial power-of-attorney, and her brother, Albert Van Laar, a medical power-of-attorney. On the same date, Howard signed a durable power-of-attorney naming David as his attorney-in-fact. By late 1993, Margaret’s physical and cognitive state had severely deteriorated. She was never to leave the nursing home. Howard, on the other hand, returned home in January 1993, under the personal care of a nurse’s aid.

[¶ 5.] In the fall of 1993, Howard met with his attorney in Canton to discuss estate planning. After several meetings, the attorney drew separate revocable living trust agreements for Margaret and Howard. The attorney never met with Margaret. Howard provided all the details necessary to create her trust. According to Howard’s attorney, these trusts were established so that Howard and Margaret could minimize both state inheritance and federal estate taxes, and provide for their continuing care. Approximately $200,000 was initially placed in Margaret’s trust. Howard’s trust received $600,000. This appeal centers on the legal propriety of Margaret’s trust.

[¶ 6.] In our reading, the terms of her trust instrument are somewhat contradictory. It begins by naming Howard as “Settlor,” Margaret as “Primary Beneficiary/Settlor,” and David as “initial Trustee.” There is no place provided in the instrument for Margaret’s signature as Settlor. Her signature, in fact, is nowhere in the document. The instrument declares that “Howard Amundson shall retain no rights or powers over the assets transferred in trust hereunder.” However, the “Trustees” are given extensive powers under SDCL ch. 55-1A, and on the signature page Howard is named “Settlor and initial Trustee” along with David as “Co-Trustee.”

[¶ 7.] Margaret’s trust instrument represents that “The assets transferred in trust consist of [Margaret’s] share of the joint assets of the Settlors.” The trust gives her a “general power of appointment to direct disposition of all assets,” including the power to name beneficiaries and to revoke the trust. Upon Margaret’s death, the document instructs the trustees to distribute $60,000 of the trust estate to five of Margaret’s relatives. The trustees are given discretion to make annual gifts of up to $10,000 per person to these individuals to avoid the requirement of filing a gift tax return. If Howard were still living at the time of Margaret’s death, and if funds were not readily available to him from his own revocable trust or from another source, Margaret’s trust instructs the trustees to draw from the principal and income of her trust for his “proper care, support, and maintenance.” Upon the death of both Margaret and Howard, any amount not otherwise designated by Margaret goes to David.

[¶ 8.] After Howard and David signed the trust documents, Howard’s attorney sent copies in January 1994 to Margaret at the nursing home along with a cover letter explaining that she alone held the right to revoke the trust, to change beneficiaries, and to name a different residue recipient upon her death. The problem with this was that although the letter served to formally notify Margaret of the creation of her trust, she was not mentally capable of understanding that one had been created on her behalf. She had been out of touch with reality for some time. She suffered from dementia and was unable to communicate rationally. As she had not been adjudicated legally incompetent, no guardian or conservator had been appointed to act as her representative in accepting or managing her trust. Indeed, although he had never met her, Howard’s attorney conceded that it was his feeling when he sent her the trust documents that she probably was not competent. The attorney also conceded that as a practical matter it was impossible for Margaret to exercise her right of substitution and revocation under the trust.

[¶ 9.] In 1995, David told Howard that the costs of caring for Margaret had depleted the corpus of her trust to approximately $175,000. David suggested that by increasing the amount in the trust, Howard could take greater advantage of the federal tax exemption, and ensure that the trust income would cover Margaret’s nursing home expenses. Howard placed funds in the trust from a mining venture that he and Owen had been involved in and recently sold. Howard received approximately $395,000 from this sale and he placed about half of it into Margaret’s trust, increasing the corpus to approximately $440,000.

[¶ 10.] Howard died on May 17, 1998. Margaret died eleven days later on May 28. She had no will. At the time of her death, Margaret’s trust held approximately $458,000. In preparing the trusts, neither Howard nor his attorney apparently anticipated that Margaret might be in a position to exercise her elective share. Because her health was considered worse than Howard’s, Margaret was not expected to outlive him. Margaret’s brother, Albert, was appointed the personal representative of her estate. On June 29, 1998, Albert filed a petition for elective share on behalf of Margaret’s estate under SDCL 29A-2-212. He later moved to set aside her trust.

[¶ 11.] Margaret’s estate argued in circuit court that the trust was invalid and illusory because it allowed Howard to serve as Margaret’s “surrogate testator,” naming his nephew, David, as the residuary beneficiary, safe in the knowledge that Margaret was incapable of changing it. In responding to these assertions, Howard’s attorney testified that he and Howard had no discussion about elective shares, much less a plan to thwart Margaret’s elective share rights. In its findings of fact, the trial court ruled:

Margaret Amundson’s mental condition at the time her trust was created was not good. There is reason to doubt that she ever had the capacity to understand the conditions of the trust so that she could have exercised her right to revoke the trust and appoint new or additional beneficiaries. There is no evidence, however, that Howard Amundson created the trust with the intent of taking advantage of any incapacity on the part of Margaret and 'thereby defeating her spousal election.
There is no evidence that Howard Amundson was ever advised, by counsel or anyone else, that there was an elective share that could be asserted by the spouse who survived the other.
There is no evidence that Howard Amundson considered or had any thought of defeating Margaret Amund-son’s rights to an elective share.
The Margaret Amundson trust and the Howard Amundson Trust were set up for tax benefits, and to provide for the care of Margaret Amundson.

The court concluded that it “may or may not have been Margaret Amundson’s wish to name the same beneficiaries” because she never expressed a plan for bestowing her assets. Nonetheless, the court declined to invalidate Margaret’s trust, holding that her estate did not meet its burden of establishing adequate grounds.

[¶ 12.] Margaret’s estate now appeals contending that the circuit court erred in failing to hold (1) that Margaret’s trust violates South Dakota public policy on spousal elective shares and intestate succession; (2) that performance of the trust is impossible; and (3) that the trust is fraudulent. We need not reach Issues (2) and (3), as we conclude that under Issue (1) the trust violates a surviving spouse’s right to take an elective share, which right may be claimed by a deceased surviving spouse’s personal representative under South Dakota’s unique version of the Uniform Probate Code (UPC). Margaret’s trust was created primarily to provide for her care and minimize death taxes, but it also purported to create a living trust in her name when both her husband and his attorney knew she was not mentally competent to create one for herself, or exercise any of the powers the trust granted.

B.

[¶ 13.] Margaret’s estate stresses the circuit court’s erroneous understanding of South Dakota law and its misconception of the public policy behind the statutory right to a spousal elective share. It points to two of the court’s conclusions: “The central characteristic of an elective share is to benefit the spouse, not the spouse’s heirs”; and “Petitioner [Margaret’s estate] has failed to show that the Margaret Amund-son trust was set up to defeat her elective share.” The first finding is an erroneous conception of our present elective share law; the second finding, though possibly accurate, is not germane to the question whether the trust violates public policy.

[¶ 14.] South Dakota’s version of the UPC, adopted in 1995, allows a spouse of more than fifteen years to obtain half the augmented estate of the deceased spouse, even when the deceased made provisions to the contrary. See SDCL 29A-2-202. The amounts transferred under certain trusts are included in the combined estate of the husband and wife to calculate the augmented estate because “[t]he value of the augmented estate includes the value of the decedent’s nonprobate transfers to others.... SDCL 29A-2-205. Although Margaret’s trust lists her as a co-settlor, in truth, Howard was the only settlor, as her involvement was nonvolitional.

[¶ 15.] The National Conference of Commissioners on Uniform State Laws designed the revised UPC to achieve several goals, one of the most important of which was the protection of a surviving spouse’s right to a “fair share” of the decedent’s estate. Unif. Probate Code art. II pt. 2 gen. cmt., 8 ULA 292 (1997). In creating the augmented estate concept, the commissioners embraced the economic partnership theory of marriage. Unif. Probate Code § 2-202, 8 ULA 93 (1997). “The main purpose of the revisions is to bring elective share law into line with the contemporary view of marriage as an economic partnership.” Unif. Probate Code rev. art. II, pt. 2, gen. cmt. (1993); 8 ULA 93 (1997). But see Estate of Karnen, 2000 SD 32, ¶ 14, 607 N.W.2d 32, 36 (“The goal of our elective share statutes is to protect a surviving spouse from disinheritance, rather than reward him or her for contributions made to the economic partnership of an enduring marriage.”). Under the UPC, the augmented estate consists of the sum of the decedent’s net probate estate, the value of property transferred to third parties (except bona fide purchasers) over which the decedent retained dominion and control, including revocable trusts, and the surviving spouse’s assets. Unif. Probate Code § 2-204, 205, 8 ULA 104-05 (1997). Sixteen states, including South Dakota, adopted the “augmented estate” approach of the revised UPC.

[¶ 16.] Two rationales underlie our elective share system: support and contribution. The support theory acknowledges the survivor’s financial needs after the death of a spouse. Unif Probate Code (amended 1993), 8 ULA gen. cmt. at 99 (1997). Spouses owe a mutual duty of support during their lives, and after death this duty continues in favor of the survivor in the form of a claim on the decedent’s estate. Antonopoulos, 993 P.2d at 642 (citations omitted). Under this rationale, the length of the marriage is irrelevant because the duty of support is based on status and originates when the marriage is created. Id.; Unif. Probate Code (amended 1993), 8 ULA gen. cmt. at 99 (1997). The 1990 UPC incorporates the support theory into its elective share arrangement by providing for a supplemental elective share amount that applies regardless of the length of the marriage. Unif. Probate Code art. II, pt. 2, § 2-202(b); 8 ULA 99 (1997).

[¶ 17.] The second theory, contribution, recognizes the assistance of the surviving spouse in acquiring assets. Unif. Probate Code (amended 1993), 8 ULA gen. cmt. 93 (1997). Each spouse possesses rights under an “unspoken marital bargain” to share the “fruits of the marriage.” Antonopoulos, 268 Kan. 178, 993 P.2d 637, 642 (1999). The elective share compensates a surviving spouse when the deceased disinherits his or her “partner.” Id. (Citations omitted). Assuming that the longer the “partnership” the greater the contribution, a sliding scale proportions the surviving spouse’s share based on the length of marriage. See SDCL 29A-2-202.

[¶ 18.] The partnership theory of marriage was not so fully embraced by the drafters of the UPC that it applies in the event a surviving spouse dies during the administration of the deceased spouse’s estate without having decided to take an elective share. If a surviving spouse dies during the administration of the predeceased spouse’s estate without having made the election, under the UPC the personal representative of the surviving spouse’s estate may not make the election on his or her behalf. See Unif. Probate Code § 2-212(a), 8 ULA at 126. As the comments to 2-212 explain, “Subsection (a) is revised to make it clear that the right of election may be exercised only by or on behalf of a living surviving spouse.... In any case, the surviving spouse must be alive when the election is made. The election cannot be made on behalf of a deceased surviving spouse.” 8 ULA at 128.

[¶ 19.] In contrast, South Dakota is unique among the states adopting the UPC. Our Legislature took the marital contribution-partnership theory a step further: it allowed an election by the personal representative of a deceased surviving spouse. SDCL 29A-2-212. Under the predecessor statute, the right of election could be “exercised only during the lifetime of the surviving spouse.” See SDCL 30-5A-3 (repealed). Effective July 1, 1995, however, the law provides:

The right of election may be exercised either by the surviving spouse or by the surviving spouse’s conservator or agent under the authority of a power of attorney, or if the surviving spouse dies prior to the expiration of the time for making an election under § 29A-2-211, by the surviving spouse’s personal representative.

SDCL 29A-2-212. This was . a distinct departure from the UPC approach. To our knowledge, no other jurisdiction has broken with the UPC version in this regard. We are thus left to discern our Legislature’s purpose without guidance from other UPC jurisdictions. When deciding statutory intent, we presume that the Legislature had in mind previously enacted statutes on the subject. Estate of Smith, 401 N.W.2d 736, 740 (S.D.1987) (citing State v. Chaney, 261 N.W.2d 674 (S.D.1978)).

[¶ 20.] Allowing the personal representative of the deceased surviving spouse to make the election acknowledges the durability of the contributions made by the surviving spouse to the acquisition of assets during the marriage. Even after a surviving spouse’s death, the estate can make the election on behalf of the deceased surviving spouse, thus permitting the heirs to reap the contribution the spouse earned in the marital partnership. Logically, the estate could not make the election if during the surviving spouse’s lifetime he or she legally waived the right to elect or consented to exclude certain assets through the creation, for example, of nonprobate transfers such as living trusts. See SDCL 29A-2-213 (right of election may be relinquished by written contract, agreement, or waiver signed by the surviving spouse.) Here, of course, Margaret did not choose to place her share of the marital assets in trust or choose her beneficiaries. Those decisions were made for her at a time when she was mentally incapable of understanding or exercising her rights.

C.

[¶ 21.] Margaret’s estate argues that the trust Howard created for Margaret had as its purpose the evasion of her elective share. Howard’s estate counters that the trust was created to provide for Margaret’s care and to take advantage of estate tax exemptions, not to defeat Margaret’s right to take an elective share. The trial court specifically found that the trusts were created to minimize death taxes and to provide caretaking for Margaret and Howard, with no intent to preclude Margaret’s elective share. Regardless, these arguments derive from cases decided in non-UPC jurisdictions where the courts were dealing with revocable living trusts assertedly used to defeat a spouse’s elective share. See Dunnewind v. Cook, 697 N.E.2d 485 (Ind.App.1998); Seifert v. Southern Nat’l Bank, 305 S.C. 353, 409 S.E.2d 337, 338-39 (1991) (living trust was “illusory,” and therefore invalid, where grantor defeated spousal elective share by removing property from estate while retaining control over assets in trust); Moore v. Jones, 44 N.C.App. 578, 261 S.E.2d 289, 292 (1980) (finding trust invalid where settlor retained powers over trust assets so extensive that he retained same rights after creating trust that he had prior to its creation). In the Dunnewind case, the court found that the “sole purpose” of the trust was to defeat the spouse’s statutory elective share. Dunnewind, 697 N.E.2d at 487, 490. In states that still apply the elective share to the probate estate only, as opposed to nonpro-bate transfers, assets held in such trusts avoid the reach of the spousal elective share. See Soltis v. First of America Bank-Muskegon, 203 Mich.App. 435, 513 N.W.2d 148, 151 (1994). Johnson v. La Grange State Bank, 73 Ill.2d 342, 22 Ill.Dec. 709, 383 N.E.2d 185 (1978). In those jurisdictions, therefore, certain trusts can be facile devices for defeating elective share rights.

[¶ 22.] Our case is not analogous to these non-UPC decisions because they come from jurisdictions that do not recognize the “augmented estate” approach of the UPC. In those states, the law allows the surviving spouse a share only from the probate estate and a “valid inter vivos trust does not pass under the laws of descent and distribution and thus does not become part of the decedent’s probate estate.” Dunnewind, 697 N.E.2d at 488 (citations omitted). In states that retain traditional forced share statutes, courts employ various equitable rules in a case-by-case inquiry into the testator’s use of various will substitutes: under this approach property transferred out of the estate is considered part of the probate estate if the conveyance is “illusory,” or if the decedent “intended to defraud” the surviving spouse of his or her marital right in the estate, or if the decedent lacked “present donative intent” with respect to the transfer. In Newman v. Dore, 275 N.Y. 371, 9 N.E.2d 966, 968 (1937), for example, the court used the illusory purpose test to decide if a trust was invalid as a device to disinherit the wife. See also Theresa A. Smyth, The Use of an Intervivos Trust to Circumvent an Elective Share, 9 PROBLJ 207, 229 (1989).

[¶ 23.] On the other hand, in South Dakota, for elective share purposes, a decedent’s nonprobate transfers of marital property are by statute automatically part of the augmented estate. SDCL 29A-2-204; SDCL 29A-2-205. Therefore, no equitable balancing or other remedy is necessary or appropriate to determine if trust assets are to be included in the augmented estate. As one commentator explained, under the revised UPC, by including the value of will substitutes in the augmented estate, these devices cannot be used to defeat the purpose of the elective share: “by preventing this ‘fraud’ mechanically, the uncertainty produced by a judicial ‘balancing of the equities’ after the fact is avoided.” John W. Fisher II & Scott A. Curnutte, Reforming the Law of Intestate Succession and Elective Shares: New Solutions to Age-Old Problems, 93 WVaL-Rev 61, 108-109 (1990) (internal quotations in original).

D.

[¶ 24.] Margaret’s estate underscores the absence of any indication that Margaret knew of her trust or the powers it gave her, though it was a trust purportedly created by her as a co-settlor. The argument-is that Howard effectively took advantage of her deteriorated mental condition to achieve his personal estate plan and deprive his wife of her right to an elective share. Yet the trial court found that there was no evidence of such a scheme. Howard was concerned with saving the estate from substantial federal estate taxes. Howard’s attorney testified that they had no discussion about elective shares. On the contrary, it was assumed that Howard would outlive Margaret, and if she passed away without a tax savings plan in place, all the marital assets would be in Howard’s estate for him to bequeath as he wished, subject to the full amount of death taxes.

[¶ 25.] A long line of federal cases hold that for estate tax purposes, so long as a granting instrument creates a general power of appointment exercisable in favor of the grantee, the power is sustainable regardless of the grantee’s inability to exercise such power because of incompetence. See Estate of Gilchrist v. Commissioner, 630 F.2d 340, 345 (5th Cir. 1980); Boeving v. United States, 650 F.2d 493, 495 (8th Cir.1981); Williams v. United States, 634 F.2d 894 (5th Cir.1981); Estate of Rosenblatt v. Commissioner of Internal Revenue, 633 F.2d 176, 179-80 (10th Cir.1980); Estate of Alperstein v. Commissioner of Internal Revenue, 613 F.2d 1213, 1221 (2ndCir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980); Pennsylvania Bank & Trust Co. v. United States, 597 F.2d 382, 383 (3rd Cir.1979), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Fish v. United States, 432 F.2d 1278 (9th Cir.1970). These cases acknowledge the primacy of state law in deciding the validity of trusts, however.

[¶ 26.] The distinction between these federal cases and the one before us is that Margaret’s trust was formed by those who knew at the time the trust was created that she was incapable of exercising the powers conferred upon her, including the power to change beneficiaries. Since Margaret had no guardian or conservator appointed for her, those powers could not be exercised on her behalf. In the federal cases, there was no evidence that the trusts were created by those who knew beforehand that the donees would never be able to exercise the rights given to them. Here, in contrast, although the purpose of Margaret’s trust may not have been to defeat her elective share, Howard effectively directed the course of the assets held in Margaret’s nominal control because she could not exercise her power over the property, and both Howard and his attorney knew it. A trust must terminate if its “purpose becomes unlawful or impossible to fulfill....” SDCL 55-3-23(3). See also Restatement of Trusts (Second) § 62. In purposely bypassing Margaret’s knowing participation in the distribution of marital assets, the trust Howard created for her violated South Dakota’s spousal elective share policy. Therefore, the trust is invalid and must be terminated.

E.

[¶ 27.] Both sides seek an award of attorney fees. SDCL 15-17-38; 15-26A-87.3. On Margaret’s estate’s request, we remand to the circuit court for determination of a proper award. See Estate of Hafferman, 442 N.W.2d 238, 242 (S.D.1989).

[¶ 28.] Reversed and remanded.

[¶ 29.] MILLER, C.J., and SABERS, AMUNDSON, and GILBERTSON, JJ., concur.

      . SDCL 29A-1-201(36) provides:
      "Power of appointment” means a power to vest absolute ownership in the property subject to the power, whether or not the powerholder then had capacity to exercise the power. "General power of appointment” means a power exercisable in favor of the powerholder, the powerholder’s estate, the powerholder’s creditors, or the creditors of the powerholder’s estate, whether or not the power is also exercisable in favor of others. "Presently exercisable general power of appointment” includes a power to revoke or invade the principal of a trust or other property arrangement, but excludes a power exercisable only by the powerholder's will.

      . Distributions were directed as follows: $25,000 to her brother Albert Van Laar; $10,000 to her sister Gladys Van Laar; $10,000 to her sister Helen Van Laar; $10,000 to her sister Mary Ann Van Laar; and $5,000 to her niece Robin Van Laar, who is the daughter of Margaret's deceased sister, Rosie Van Laar. At about the time the trusts were established, Howard also gave gifts of $5,000 to each of Margaret's siblings.

      . After the court heard and disposed of the challenges to the validity of Margaret’s trust, the court ruled, in accord with South Dakota’s UPC, that Margaret’s Estate was entitled to an elective share of 50% of the augmented estate. However, because Margaret had a power of appointment under the trust, the entire value of her trust was charged against her elective share. But her power of appointment was meaningless as we explain below.

      . Under our standard of review, the circuit court’s findings of fact can be overturned only if they are found to be "clearly erroneous” in light of all the evidence. Estate of Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490. Con-elusions of law, in contrast, are fully reviewable, as are mixed questions of fact and law. Schuck v. John Morrell & Co., 529 N.W.2d 894, 896 (S.D.1995) (citations omitted). "The credibility of the witnesses, the weight to be accorded their testimony, and the weight of the evidence must be determined by the trial court and we give due regard to the trial court’s opportunity to observe the witnesses and the evidence.” In re Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995) (citations omitted). Documentary evidence is reviewed under a de novo standard. Id. (Citations omitted).

      . Alaska; Arizona; Colorado; Florida; Hawaii; Idaho; Maine; Michigan; Minnesota; Montana; Nebraska; New Mexico; North Dakota; South Carolina; South Dakota; and Utah. 8 ULA 1 pt. 1 (Supp. 2000).

      . The right of a spouse to take an elective share was created to prevent disinheritance of the surviving spouse. Estate of Karnen, 2000 SD 32, ¶ 14, 607 N.W.2d at 36; Estate of Antonopoulos, 268 Kan. 178, 993 P.2d 637, 642 (1999) (citing Volkmer, Surviving Spouse’s Right to Inherit, 21 Est. Plan 58 (1994)); Mongold v. Mayle, 192 W.Va. 353, 452 S.E.2d 444, 446 (1994) (citing John W. Fisher II & Scott A. Curnutte, Reforming the Law of Intestate Succession and Elective Shares: New Solutions to Age-Old Problems, 93 WVaLRev 61, 98-115 (1990) ("[T]he protection of a decedent’s wife from disinheritance began as early as the Code of Hammurabi, and can be traced through Roman, Germanic, Scandinavian and Saxon Law.”)) (citations omitted).

      . SDCL 30-5A-3 was based on section 203 of the Uniform Probate Code. It was repealed by 1995 SD Laws ch. 167, § 148. Elective share provisions were first enacted when South Dakota adopted the Uniform Probate Code (UPC). 1974 SD Laws ch. 196; Estate of Smith, 401 N.W.2d 736, 737 (S.D.1987). The UPC was repealed in 1976. Id. Separate elective share provisions were then enacted in 1980. Id. 1980 SD Laws ch. 205 (codified at SDCL ch. 30-5A). On July 1, 1995 South Dakota's current UPC became effective. SDCL 29A-1-101.

      . In some states that require the surviving spouse to make the election personally during his or her lifetime, once the surviving spouse dies, unexpended property is returned to the predeceased spouse's estate to be distributed. See e.g. Mont. Code Ann. § 72-2-223(c) (1999); N.D.Cent.Code § 30.1-05-06(c) (1996); Utah Code Ann. § 75-2-212(c) (2000 Supp.); W.Va.Code § 42-3-3 (2000 Supp.).

      . In Dunnewind, the court invalidated an otherwise facially valid trust. There, the wife executed a trust leaving all her property to her children from a prior marriage after she learned she had terminal cancer and had only a short time to live. Dunnewind, 697 N.E.2d at 487. The court held the trust failed to defeat the spouse’s share because it was executed in contemplation of impending death for the sole purpose of defeating her husband’s statutory rights to her assets as a surviving spouse. Id. at 490. The court returned the assets to the wife's estate to be subject to the elective share petition of the surviving husband. Id.

      . The augmented estate approach of the revised UPC remedied the problem under the old forced share laws where the elective share could be easily circumvented by using inter vivos transfers. "Because most forced share statutes calculate the spouse’s share as a fraction of the probate estate, a testator may substantially reduce the amount that the surviving spouse can receive by utilizing various will substitutes such as life insurance policies, employee benefit plans, joint and survivor annuities, joint tenancies, joint bank accounts, Totten trusts, P.O.D. accounts, and revocable inter vivos trusts, in order to deplete the probate estate. Thus, by failing to take will substitutes into account in the calculation of the surviving spouse's share, forced share statutes invite attempts at evasion through the use of these devices.” John W. Fisher, II and Scott A'. Curnutte, REFORMING THE LAW OF INTESTATE SUCCESSION AND ELECTIVE SHARES: NEW SOLUTIONS TO AGE OLD PROBLEMS, 93 WVaLR 61, 102-03 (1990)(footnoted information omitted). Under the revised UPC "[a] more predictable result is achieved by a forced share statute which mechanically takes into account will substitutes.” Id. at 99.

      . Despite the changes in the UPC to the contrary, South Dakota continues to charge the surviving spouse’s elective share with the commuted value of a life estate, even if it is disclaimed. See Estate of Karnen, 2000 SD 32, ¶ 15 n. 5, 607 N.W.2d at 37; SDCL 29A-2-209(2).