author: HALBROOKS, Judge.

text:
    Mary HOEFT, et al., Appellants, v. HENNEPIN COUNTY, et al., Respondents, City of St. Louis Park, et al., Respondents.
    No. A07-1587.
    Court of Appeals of Minnesota.
    Aug. 19, 2008.

      Michael D. Schwartz, Joseph J. Walsh, Michael D. Schwartz, P.A., Chanhassen, MN, for Appellants.
    Michael 0. Freeman, Hennepin County Attorney, Michael B. Miller, Senior Assistant County Attorney, Minneapolis, MN, for Respondents Hennepin County, et al.
    Thomas M. Scott, Campbell Knutson, P.A., Eagan, MN, for Respondents City of St. Louis Park, et al.
    Considered and decided by PETERSON, Presiding Judge; KALITOWSKI, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellants’ son, an officer of the St. Louis Park Police Department, was found dead in his patrol car while on duty one evening. The Hennepin County Medical Examiner’s Office ruled the death a suicide, which was reflected on the death certificate. Appellants, who disagree about the manner of their son’s death, brought a declaratory-judgment action against respondents City of St. Louis Park, St. Louis Park Police Department, Hennepin County, Hennepin County Sheriffs Office, and Hennepin County Medical Examiner’s Office, seeking to compel the medical examiner to amend their son’s death certificate to reflect that the manner of his death was an accident. The district court dismissed appellants’ claim on the ground that the action did not present a justiciable controversy. Because we conclude that the district court correctly determined that appellants’ declaratory-judgment action does not present a justiciable controversy and did not abuse its discretion by denying appellants’ motion to amend, we affirm.

FACTS

Appellants Mary and Terry Hoeft are the parents of Ryan Hoeft (Hoeft). Hoeft was an officer with the St. Louis Park Police Department at the time of his death. At approximately 11:55 p.m. on November 6, 2001, a fellow officer found Hoeft in the driver’s seat of his patrol car with a fatal .45 caliber gunshot wound to the head. The fatal shot had been fired from Hoeft’s service weapon.

The St. Louis Park Police Department requested that the Hennepin County Sheriffs Office assist in investigating Hoeft’s death. Upon completion of the investigation, the Hennepin County Medical Examiner concluded that Hoeft’s death was a suicide and issued a death certificate on February 8, 2002, that stated that Hoeft’s manner of death was suicide. The Henne-pin County Sheriffs Office subsequently returned Hoeft’s service weapon and patrol car to the St. Louis Park Police Department.

Appellants disagree with the medical examiner’s conclusion that Hoeft committed suicide, believing instead that his death was the result of an accidental discharge of his service weapon. They hired several investigatory and forensic medical experts to review the circumstances surrounding Hoeft’s death. Based on these experts’ independent investigations, appellants theorize that, on the night in question, Hoeft removed his weapon from its holster and placed it on the front passenger seat of his squad car so that he could safely process an arrestee at a local detention center. Appellants believe that Hoeft forgot to immediately re-holster his weapon when he resumed patrol and was in the process of securing his weapon in its holster when his squad car hit a curb. As a result of the impact, the weapon accidentally discharged, killing Hoeft.

Appellants produced evidence supporting this theory and identifying what they allege are shortcomings in the medical examiner’s investigation of Hoeft’s death. For example, appellants provided evidence that Hoeft was a happy and stable individual who was looking ahead to a future with his girlfriend, whom he planned to propose to, at the time of his death. Further, the accident reconstructionist and the forensic medical experts hired by appellants all concluded that Hoeft’s death was the result of an accident.

Appellants provided the medical examiner with the evidence and conclusions reached by their independent investigators. In response, in the spring of 2004, the medical examiner asked two out-of-state forensic pathologists to review Hoeft’s case in light of the additional information that appellants provided. Ultimately, the medical examiner reaffirmed his earlier conclusion that Hoeft’s death was a suicide.

On February 14, 2007, appellants brought a declaratory-judgment action. Although appellants sought multiple declarations, all were ultimately aimed at compelling the medical examiner to amend Hoeft’s death certificate to reflect that the manner of his death was an accident. After filing this action, appellants learned that St. Louis Park had provided Hoeft with a life-insurance policy through Prudential Insurance Co. and moved to amend their complaint to add Prudential as a defendant.

Respondents moved to dismiss appellants’ action on the ground that it did not present a justiciable controversy. The district court granted respondents’ motion and dismissed the action in its entirety. The district court also denied appellants’ motion to amend their complaint to incorporate issues related to Hoeft’s life-insurance policy and to add Prudential as a defendant. This appeal follows.

ISSUES

1. Did the district court correctly conclude that appellants’ declaratory-judgment action, seeking to compel the medical examiner to amend their son’s death certifícate, failed to present a justiciable controversy?
2. Did the district court abuse its discretion by denying appellants leave to amend their complaint?

ANALYSIS

This case presents an issue of first impression concerning what remedy, if any, parents in Minnesota, have when they believe that their child’s death certificate reflects an inaccurate statement of the manner of death. Minnesota law generally gives both the county attorney and medical examiner discretion about whether to conduct “inquests” into a person’s death. MinmStat. § 390.11, subd. 5 (2006). But if the death is the result of violence or occurred under unusual or mysterious circumstances, there must be an investigation. Minn.Stat. § 390.32, subd. 1 (2006). If the county attorney conducts the investigation, he or she does so using the judicial process and before the district court. Id., subd. 9 (2006). If the county attorney does not conduct the investigation, he or she “shall inform the medical examiner who shall find the cause of death and sign and file a death record.” Id., subd. 10 (2006). When the death occurs outside of a correctional facility, the medical examiner is the only person permitted to file or amend a death record with the state registrar in cases of likely or suspected suicide or accidental death. Minn.Stat. § 390.23 (2006).

I.

The Uniform Declaratory Judgment Act (UDJA or “the act”) gives courts “within their respective jurisdictions” the power to “declare rights, status, and other legal relations.” Minn.Stat. § 555.01 (2006). But the UDJA “cannot create a cause of action that does not otherwise exist.” Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 916 (Minn.App.2003). Issues of fact in a declaratory-judgment action are to be tried as they would be in a typical civil action. Minn.Stat. § 555.09 (2006). Thus, a disputed fact in a declaratory-judgment action is established upon proof by a preponderance of the evidence. See Wick v. Widdell, 276 Minn. 51, 53-54, 149 N.W.2d 20, 22 (1967) (“In an ordinary civil action the plaintiff has the burden of proving every essential element of his case ... by a fair preponderance of the evidence.”). The UDJA is remedial in nature and is to be liberally construed and administered to “settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Minn. Stat. § 555.12 (2006).

A declaratory-judgment action must present a justiciable controversy or a district court has no jurisdiction to declare rights under the act. Onvoy, Inc. v. ALCETE, Inc., 736 N.W.2d 611, 617 (Minn. 2007). The UDJA does not, by itself, confer jurisdiction on a court over the action. Alliance for Metro. Stability, 671 N.W.2d at 915. A justiciable controversy exists if “the claim (1) involves definite and concrete assertions of right that emanate from a legal source, (2) involves a genuine conflict in tangible interests between parties with adverse interests, and (3) is capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion.” Onvoy, Inc., 736 N.W.2d at 617-18. Determining whether a justiciable controversy exists, and thus whether a district court has jurisdiction over a declaratory-judgment action, is a question of law, which we review de novo. Cincinnati Ins. Co. v. Franck, 621 N.W.2d 270, 273 (Minn.App.2001).

A. Justiciable controversy and multiple respondents

Appellants seek four different declarations, naming five different respondents. They seek to establish that: (1) the Hen-nepin County Sheriffs Office insufficiently investigated Hoeft’s death and prematurely released Hoeft’s patrol car and service weapon to St. Louis Park; (2) both the City of St. Louis Park and the St. Louis Park Police Department improperly failed to preserve Hoeft’s service weapon and patrol car; (3) the Hennepin County Medical Examiner’s Office incorrectly concluded that Hoeft’s death was a suicide; and (4) Hoeft’s death was accidental.

The first two declarations concerning the Hennepin County Sheriffs Office, City of St. Louis Park, and the St. Louis Park Police Department are of a different character from the latter two declarations. The claims of an insufficient investigation and the failure to preserve certain evidence are essentially ancillary to appellant’s ultimate claim: that Hoeft’s death was an accident and the medical examiner should amend the death certificate to properly reflect this conclusion. As such, we address these two declarations separately.

Appellants have made no showing that they have a right emanating from a legal source to a declaration that respondents City of St. Louis Park and St. Louis Park Police Department improperly failed to preserve evidence concerning Hoeft’s death, despite the conclusion of the formal investigation. Appellant’s disapproval of respondents’ conduct, without more, does not create a genuine conflict in tangible interests. See Thuma v. Kroschel, 506 N.W.2d 14, 21 (Minn.App.1993) (stating that because the appellant’s action was “solely limited to a judicial declaration that [the defendant] acted ultra vires” in his capacity as mayor, the two parties did not have adverse interests creating a genuine conflict), review denied (Minn. Dec. 14, 1993). Appellants are essentially requesting judicial condemnation of respondents’ actions. But such a desire, by itself, cannot support a justiciable controversy. This particular declaration is more properly characterized as a potential spoliation issue that appellants would raise before the district court in a hearing on the merits. See generally Patton v. Newmar Corp., 538 N.W.2d 116, 118-19 (Minn.1995) (affirming, in a spoliation case, the “sanction” of the exclusion of expert testimony regarding automobile that had since been destroyed).

The same analysis and conclusion apply regarding the requested declaration that the Hennepin County Sheriffs Office prematurely relinquished Hoeft’s service weapon and squad car. We again can find no basis for concluding that this declaration is asserting a right emanating from a legal source, creates a genuine conflict in tangible interests, or would compel the medical examiner to alter Hoeft’s death certificate. Thus, if appellants’ claim regarding the purported inaccuracy' of Hoeft’s death certificate presents a justiciable controversy at all, it is only with regard to the Hennepin County Medical Examiner’s Office and Hennepin County as the office’s superior entity.

B. A justiciable controversy and the accuracy of a third-party death certificate

Appellants’ third and fourth declarations directly challenge the accuracy of the conclusion concerning manner of death on Hoeft’s death certificate and seek to amend it to reflect that the manner of his death was accidental. In order to determine whether these claims present a justi-ciable controversy, we will examine each element that must underlie such a controversy independently.

1. A genuine conflict in which the parties have adverse tangible interests

Appellants argue that, under the circumstances, the parties’ disagreement over whether Hoeft’s death was a suicide or accident creates the required conflict. Respondents assert that the medical examiner’s office was disinterested in the manner of Hoeft’s death, received no benefit from declaring it a suicide, and would lose nothing if this conclusion were found to be incorrect. Accordingly, they reason, the parties do not have adverse tangible interests resulting in a genuine conflict.

In this instance, appellants are seeking more than an abstract declaration by the district court; they are seeking a substantive change to an official state record that has potential legal implications if they are to attempt recovery under Hoeft’s life-insurance policy. Cf. Thuma, 506 N.W.2d at 21 (stating that a declaration “limited” to the fact that the defendant “acted ultra vires” in his capacity as mayor did not create a genuine conflict in tangible interests). Respondent medical examiner’s office correctly notes that it has no financial or other interest in Hoeft’s death certificate. But we have found no authority suggesting that the required interest is tangible only if it is the equivalent of a quantifiably measurable benefit or loss.

Respondent medical examiner’s office has not only a professional, but a statutory, duty to determine a decedent’s manner of death. See Minn.Stat. §§ 390.32, subd. 10 (stating that a medical examiner “shall” file a death record if the county attorney Jdoes not conduct an inquest); .23 (stating that only a medical examiner can file manner-of-death information on a death certificate). Because the parties dispute the accuracy of the factual substance of an official state record that it is respondent’s legal duty to create and that may have potential implications relating to recovery of life-insurance proceeds, we conclude that their interests are sufficiently adverse to create a genuine conflict between them.

2. Capable of specific resolution by judgment

Respondents next argue that a district court judgment would not settle the dispute between the parties and that appellants’ claim presents hypothetical facts amounting to a request for an advisory opinion. We disagree.

Appellants are asking to be permitted to have a fact-finding proceeding based on actual events that have already occurred in an attempt to establish by a preponderance of the evidence that Hoeft’s death was accidental. The hearing sought is founded on concrete facts gathered both during the authorities’ formal investigation and appellants’ own independent investigation. Presumably, in such a proceeding, exhibits would be introduced, theories would be presented, and witnesses would testify. At the conclusion, the district court would decide whether appellants have shown by a preponderance of the evidence that Hoeft’s death was accidental, and, if it concluded that they have met their burden, order the medical examiner to amend the manner of death stated on Hoeft’s death certificate. Contrary to respondents’ assertion, there are no hypothetical facts to be found; a judgment would be based on evidence already gathered and would directly resolve the current dispute. Accordingly, this element of a justiciable controversy is also met.

3. Concrete assertion of a right emanating from a legal source

Where we cannot agree with appellants’ claim is in their contention that they have a right emanating from a legal source to challenge the conclusions contained on Hoeft’s death certificate. Appellants assert that this right is founded in both Minn.Stat. § 144.225 (2006 & Supp.2007) and article I, section 8, of the Minnesota Constitution. For the purpose of discussion, we will assume that Hoeft’s death certificate incorrectly reflects that his death was a suicide.

Appellants first argue that the language in subdivision seven of Minn.Stat. § 144.225 provides them with a legal right to an accurate death certificate. The relevant statutory language states:

The state or local registrar shall issue a certified birth or death record or a statement of no vital record found to an individual upon the individual’s proper completion of an attestation provided by the commissioner:
(1) to a person who has a tangible interest in the requested vital record. A person who has a tangible interest is:
(iv) a parent of the subjeet[.]

Minn.Stat. § 144.225, subd. 7(a)(1)(iv).

Despite the absence of any language regarding accuracy, appellants contend that to interpret the provision otherwise creates the absurd result of entitling a person to a death certificate only, even if it is incorrect. Based on the statute’s plain language, respondents argue that this statute grants appellants a tangible interest in obtaining a requested vital record but does not create an interest in the substance of the record.

The statute’s clear and express language grants appellants an interest in obtaining whatever the substance of a “certified death record” might be as defined by law. Thus, if a “certified death record” is defined as one accurately reflecting the manner of death, the statute requires the registrar to issue such a death record to appellants. If the registrar does not, appellants’ statutorily granted right in obtaining such a record has been prejudiced. See Thuma 506 N.W.2d at 20 (stating that the legal right required to support a justi-ciable controversy need not amount to a cause of action, but it must consist of a “bona fide legal interest which has been, or ... is about to be, affected in a prejudicial manner” (quotation omitted)).

Minn. R. 4601.0100, subp. 4 (2007), defines a “certified death record” to mean the “portion of a registered death record, certified by a registrar, printed in a standardized format [pursuant to the relevant statutes] and subject to tangible interest requirements” of Minn.Stat. § 144.225, subd. 7. Based on this definition, a certified death record is dependent both on the further definition of a “registered death record” and the meaning of the term “certified.” Minn. R. 4601.0100, subp. 20 (2007), states that the term “register” means “the acceptance of a birth or a death record by a registrar as the official record of the birth or death.” The word “certify” is not defined in the relevant rules, but the meaning of the word is to “confirm formally as true, accurate, or genuine.” The Am. Heritage Dictionary of the English Language 314 (3d ed.1992); see also Sands v. Comm’r of Pub. Safety, 744 N.W.2d 24, 26 (Minn.App.2008) (stating that words in a statute are given their plain meaning unless they embody some special meaning).

Thus, based on the synthesis of these various terms, the term “certified ... death record” as used in Minn.Stat. § 144.225, subd. 7(a), means a portion of the death record that the registrar confirms as a true and accurate reproduction of the one that the registrar accepted as the official record of death at the time that the record was filed. In other words, subdivision 7(a) only grants appellants a right to a copy of Hoeft’s death certificate that the registrar attests is a true and accurate reproduction of the one it accepted from the medical examiner as Hoeft’s official death record at the time the medical examiner filed the record. Because the registrar accepted as the official record of Hoeft’s death a death certificate describing his manner of death as suicide, this is the “certified death record” that appellants are entitled to under the statute.

Appellants also argue that the Minnesota Constitution provides them with a right to a copy of an accurate death certificate independent of any such right found in Minn.Stat. § 144.225, subd. 7(a). They rely on article I, section 8, of the Minnesota Constitution, often called the Remedies Clause, which states: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.”

But article I, section 8, of the Minnesota Constitution is not a separate and independent source of legal rights on which to base a declaratory-judgment action. The Remedies Clause protects and preserves rights and remedies recognized under the common law. Hickman v. Group Health Plan, Inc., 396 N.W.2d 10, 14 (Minn.1986). Thus, the Minnesota Supreme Court has stated that “the Remedies Clause does not guarantee redress for every wrong, but instead enjoins the legislature from eliminating those remedies that have vested at common law without a legitimate legislative purpose.” Olson v. Ford Motor Co., 558 N.W.2d 491, 497 (Minn.1997). Further, the Remedies Clause does not protect common-law rights and remedies “for which the legislature has ... provided a reasonable substitute.” Schermer v. State Farm Fire & Cas. Co., 721 N.W.2d 307, 316 (Minn.2006) (quotation omitted).

If there is a vested common-law right for the parents of a deceased child to bring an action to contest the conclusion concerning their child’s manner of death on a death certificate, appellants have not produced evidence of this right. Neither has our own research revealed any evidence to support the notion that such a right existed at common law.

Appellants discuss what they characterize as the “common law presumption against suicide,” contending that it applies to a medical examiner’s investigation and the issuance of a death certificate. But the cases they rely on in making this argument are all distinguishable. The cases that appellants cite either involve a workers’ compensation claim in which the relevant presumption was governed by specific statutory language, see Beach v. Am. Steel & Wire Div. of U.S. Steel Corp., 248 Minn. 11, 15-16, 78 N.W.2d 371, 375 (1956), or involve civil actions to recover under a life-insurance policy in which the supreme court stated that an insurer asserting suicide as a defense against the plaintiffs attempt to collect under the policy has the burden to overcome the presumption against suicide. None of these cases indicates that the presumption against suicide is some sort of substantive common-law right.

In sum, we conclude that neither Minn. Stat. § 144.225 nor the Remedies Clause of the Minnesota Constitution provides appellants with a right emanating from a legal source to correct what they contend is an incorrect death certificate. Because this element of a justiciable controversy is not met, the district court properly dismissed their claims.

C. Policy implications

Appellants raise the concern that the failure to find a justiciable controversy here will insulate a medical examiner’s conclusions, even if clearly erroneous, from correction. Initially, we note that Minn. R. 4601.2100 (2007) specifically provides for procedures to correct many aspects of inaccurate death records, although subpart nine of this rule does restrict a party’s ability to amend “cause of death information,” which includes manner of death, see Minn. R. 4601.2550, subp. 2 (2007), without the consent of the medical examiner. The Government Data Practices Act (GDPA) also allows challenges to the accuracy or completeness of certain types of data. See Minn.Stat. §§ 13.02, subd. 8 (defining an “individual” as the parent of an incapacitated person), 13.04, subd. 4 (allowing an “individual” to challenge the “accuracy or completeness of public or private data”), 13.10 (allowing the representative of a decedent to assert rights conferred to individuals under GDPA) (2006 & Supp.2007). Furthermore, we have interpreted the GDPA to allow correction of conclusions contained in the disputed data that are determined to be inaccurate. Hennepin County Cmty. Servs. Dep’t v. Hale, 470 N.W.2d 159, 163-64 (Minn.App.1991), review denied (Minn. July 24, 1991). The issue of whether manner-of-death information contained in a death certificate can be challenged under the GDPA, however, was not raised or briefed by any party, and therefore we express no opinion on its application in this context.

To the extent that appellants are without the ability to challenge the accuracy of Hoeft’s death certificate in court, the proper body to remedy this circumstance is not the judiciary but the legislature. We note that other jurisdictions have statutes that directly allow a challenge to the accuracy of a death certificate in court. E.g., Ohio Rev.Code Ann. § 313.19 (West 2008). While we are sympathetic to appellants’ frustration and the related hardships that continue to burden them, we are constrained by the limited nature of our judicial role. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) (stating that “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).

II.

Appellants’ declaratory-judgment action was filed in district court on February 14, 2007. Appellants were unaware of Hoeft’s life-insurance policy until they were provided with a copy on April 25, 2007. On May 1, 2007, appellants moved to amend their complaint to include allegations relating to this policy and to name the insurer, Prudential, as a defendant. The district court denied the motion, concluding that the amended complaint would not present a justiciable controversy.

After a responsive pleading has been served, a party may only amend a complaint by leave of the court. Minn. R. Civ. P. 15.01. But the district court shall liberally permit a party to amend a complaint, unless the adverse party would be prejudiced. Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn.2004). Regardless, a district court has wide discretion in permitting or denying a party leave to amend its complaint, and we will not reverse its decision absent an abuse of this discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

Because appellants are intended third-party beneficiaries of Hoeft’s life-insurance policy, they have a legal right to pursue payment under the policy. See generally Hickman v. SAFECO Ins. Co. of Am., 695 N.W.2d 365, 369 (Minn.2005) (stating that a person retains certain rights relating to an insurance contract to which he is the intended beneficiary even though he is not a direct party to the contract). But the legal right emanating from Hoeft’s life-insurance policy is not to a death certificate accurately describing the manner of his death. The right granted by the policy is to monetary compensation if the terms contained in the policy are met. Appellants’ possession of this right does not affect the analysis of whether a justiciable controversy underlies their declaratory-judgment action. Accordingly, the district court acted within its discretion by denying appellants’ motion to amend their complaint. See Ag Servs. of Am., Inc. v. Schroeder, 693 N.W.2d 227, 235 (Minn.App.2005) (stating that “courts can deny motions to amend when the additional claims cannot withstand summary judgment.”).

DECISION

Appellants have failed to demonstrate that they have a right emanating from a legal source to challenge what they contend to be the medical examiner’s incorrect conclusion concerning their son’s manner of death on the death certificate. Therefore, the declaratory-judgment action does not present a justiciable controversy, and no jurisdiction exists to adjudicate the merits of the claim. The district court properly denied appellants’ motion to amend the complaint and properly dismissed appellants’ action.

Affirmed.

      . Minn.Stat. §§ 390.005-35 (2006) are now generally applicable statewide. See Minn. Stat. § 390.005, subd. 1 (stating that each county must have a medical examiner). But at the time of Hoeft’s death, the Hennepin County Medical Examiner’s Office was governed by Minn.Stat. § 383B.225 (2000) and exempted from the requirements of chapter 390 by Minn.Stat. § 390.006 (2000). Sections 383B.225 and 390.006 were repealed in 2006. 2006 Minn. Laws ch. 260, art. 8, § 21, at 829. These alterations to the statutory framework governing the Hennepin County Medical Examiner's Office do not affect our analysis or decision.

      . At oral argument, counsel for Hennepin County stated that this process is not utilized in the county and that it relies exclusively on the medical examiner to determine matters relating to a person’s death.

      . The Minnesota Rules echo this statutory requirement. See Minn. R. 4601.1800 (stating that "cause of death information,” as contained in a fact and cause of death certificate pursuant to Minn. R. 4601.2550, subp. 2 (2007), may only be provided "by a physician, coroner, or medical examiner”), 4601.2100, subp. 9 (requiring notarized approval from the medical examiner to amend "cause of death” information) (2007).

      . See Ryan v. Metro. Life Ins. Co., 206 Minn. 562, 566, 289 N.W. 557, 559 (1939) ("[I]n ... life insurance cases where death from suicide, strictly speaking, is an exception from or avoidance of the policy, the burden is upon the insurer.”); Kornig v. W. Life Indem. Co., 102 Minn. 31, 37, 112 N.W. 1039, 1041 (1907) (stating, in a life-insurance dispute. that "where the cause of death is in doubt, there is a presumption of law against death by suicide.”); Lindahl v. Supreme Court I.O.F., 100 Minn. 87, 95, 110 N.W. 358, 361 (1907) (stating, in a life-insurance dispute in which a cause of death is not conclusively established, that "when the facts proved with reference to death admit equally of the inference that the death resulted from accident or suicide, the presumption is that death was accidental."); Sartell v. Royal Neighbors of Am., 85 Minn. 369, 373, 88 N.W. 985, 987 (1902) ("[I]n an action upon an insurance policy, where the defense is suicide, the burden of proving it is upon the party so alleging; also that ordinarily, in the absence of proof that death resulted from other than accidental or natural causes, suicide will not be presumed.”); Hale v. Life Indem. & Inv. Co., 61 Minn. 516, 519-20, 63 N.W. 1108, 1108-09 (1895) (stating, in a life-insurance context, that the burden is on the party asserting suicide to prove death in. this manner and that suicide will not be presumed).

      . We express no opinion on whether there may be other grounds, not asserted by appellants, .which would allow a party to utilize the Uniform Declaratory Judgment Act to correct purported inaccuracies contained in a death certificate.

      . Respondents have also asserted that Minn. Stat. § 541.06 (2006) — the statute of limitations regarding actions taken by a medical examiner — bars appellants’ claim and that compelling a medical examiner to amend a death certificate would be a violation of the separation of powers. Because we conclude that appellants’ declaratory-judgment action does not present a justiciable controversy, we do not address those claims.

      . Assuming Hoeft's life-insurance policy contains the standard suicide exclusion, the medical examiner's classification of Hoeft's death as a suicide will undoubtedly be relevant evidence in regard to whether this exclusion can be invoked. But the medical examiner’s opinion as to the manner of Hoeft’s death is in no way conclusive, and appellants are free to litigate this factual issue in any action brought to recover under the policy.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2008 ND 151
    In the Matter of the Application for DISCIPLINARY ACTION AGAINST Dennis D. FISHER, a Member of the Bar of the State of North Dakota. Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner v. Dennis D. Fisher, Respondent.
    No. 20080198.
    Supreme Court of North Dakota.
    Aug. 21, 2008.
   INTERIM SUSPENSION ORDERED.

PER CURIAM.

[¶ 1] On August 13, 2008, an Application for Interim Suspension of Dennis D. Fisher, a member of the Bar of North Dakota, with supporting documents including certified copies of criminal judgments in City of Fargo v. Fisher, Fargo Municipal Court Case Nos. 412843 through 412846, was filed under N.D.R. Lawyer Discipl. 4. ID by Paul W. Jacobson, Disciplinary Counsel. The criminal judgments show that Fisher plead guilty to the crimes of simple assault, theft (2 counts), and disorderly conduct.

[¶ 2] N.D.R. Lawyer Discipl. 4.1D provides that upon the filing with the Court of a certificate or other satisfactory evidence of conviction demonstrating that a lawyer has been convicted of a serious crime, the Court shall enter an order immediately suspending the lawyer pending final disposition of a disciplinary proceeding predicated upon the conviction.

[¶ 3] Under N.D.R. Lawyer Discipl. 4.1C, a serious crime is any felony and any lesser crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit any of those crimes.

[¶ 4] City of Fargo, N.D., Ordinances § 10-0602 (1992) provides that theft as defined by chapter 12.1-23 of the North Dakota Century Code is unlawful and prohibited within the jurisdiction of the City of Fargo. North Dakota Century Code § 12.1-23-02 states “A person is guilty of theft if he: 1. Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another with intent to deprive the owner thereof; 2. Knowingly obtains the property of another by deception or by threat, with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat; or 3. Knowingly receives, retains, or disposes of property of another which has been stolen, with intent to deprive the owner thereof.”

[¶ 5] The Court is satisfied that the evidence presented demonstrates that Fisher plead guilty to and was convicted of two misdemeanor counts of theft. Fisher’s convictions for theft constitute a serious crime for purposes of N.D.R. Lawyer Dis-cipl. 4.1C and N.D.R. Lawyer Discipl. 4.1D.

[¶ 6] ORDERED, under N.D.R. Lawyer Discipl. 4.1D, Dennis D. Fisher’s license to practice law in North Dakota is SUSPENDED effective immediately and until further order of this Court, pending final disposition of a disciplinary proceeding predicated upon the convictions.

[IT 7] FURTHER ORDERED, that Dennis D. Fisher comply with N.D.R. Lawyer Discipl. 6.3 regarding Notice of Status.

[¶ 8] GERALD W. VANDE WALLE, C.J., DALE Y. SANDSTROM, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, JJ., concur.


author: ZINTER, Justice.

text:
    2008 SD 70
    Charles E. SISNEY, Plaintiff and Appellant, v. BEST INC. (Individually), CBM, Inc. (Individually), and William Carl Preyer (Individually), Defendants and Appellees.
    No. 24682.
    Supreme Court of South Dakota.
    Considered on Briefs March 26, 2008.
    Decided July 23, 2008.
    Rehearing Denied Aug. 18, 2008.

      Charles E. Sisney, SD State Penitentiary, Sioux Falls, South Dakota, pro se plaintiff and appellant.
    Jeffrey L. Bratkiewicz, Michele A. Mun-son of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] Charles E. Sisney, an inmate in the South Dakota State Penitentiary (SDSP), filed a pro se complaint against Best Inc., CBM Inc., and William Carl Preyer (Defendants). Sisney asserted claims under 42 U.S.C. §§ 1983 and 1985. He also asserted numerous state law claims. All claims arise out of Best’s and CBM’s contracts with the State to provide food at the SDSP. The circuit court dismissed for failure to state a claim, concluding that Sisney’s complaint was untimely as to Best, and that it failed to allege sufficient facts to support the remaining federal and state claims. With the exception of the state law claim of deceit, we affirm.

I

[¶ 2.] Sisney pleaded that he is Jewish and follows a kosher diet as part of his religion. He further pleaded that the State entered into a contract with Best to provide food services at the SDSP from February of 2000 until July 31, 2002. As part of this contract, Best provided a kosher diet, including kosher bread. Best purchased the bread from Metz Baking Company.

[¶ 3.] In August 2002, the State entered into a new contract with CBM to provide the same services, including food for kosher diets. From that time until December 8, 2004, CBM provided prisoners receiving a kosher diet with the same bread Best had previously served. On December 8, 2004, CBM began purchasing bread from Old Home Bakery.

[¶ 4.] Sisney later “heard rumors” from other prisoners that the bread Best and CBM provided might not have been “certified” kosher. Sisney submitted an administrative grievance through the Department of Corrections. The grievance was forwarded for investigation by Preyer, a food service director and employee of CBM. Preyer responded to the grievance, stating that the bread had “certification on file.” In January 2006, however, Sisney received an affidavit from Preyer in the course of other litigation stating that CBM did not, at that time, have kosher certification for either the Metz or Old Home Bakery bread that had been provided through December 14, 2004. Sisney thereafter commenced this suit as the result of Preyer’s conflicting responses and the assertion that non-kosher certified food had been (and was being) provided.

[¶ 5.] Because this appeal concerns the circuit court’s dismissal on the pleadings, the complaint’s allegations that have been preserved for appeal are repeated verbatim. Sisney pleaded that Defendants were liable under the federal statutes for:

“The violation of the plaintiffs rights guaranteed under the U.S. and South Dakota constitutions.... ”
“The conspiracy of the defendants to deny plaintiff his constitutional rights as guaranteed under the U.S. and South Dakota constitutions.”

Sisney pleaded that Defendants were liable under the state causes of action for:

“The deceptive acts of the defendants in violation of SDCL 37-24-6.”
“The fraudulent actions of the defendants in violation of SDCL 20-10-1 et seq.”
“The interference with the plaintiffs religious practices by the defendants in violation of SDCL 22-19B-4 and 20-9-32.”

[¶ 6.] Defendants moved to dismiss under SDCL 15 — 6—12(b)(5) for failure to state a claim upon which relief can be granted. The circuit court dismissed the federal constitutional and conspiracy claims, concluding that the statute of limitations had expired as to Best, and tolling did not apply because Sisney did not assert fraud in connection with those claims. The court further concluded that Sisney did not assert facts sufficient to support his remaining federal claims. The court finally concluded that Sisney either did not assert sufficient facts or relied on inapplicable statutes to support his state law claims. Sisney now appeals the dismissal and the denial of an opportunity to amend his pleadings.

II

[¶ 7.] We have followed the Supreme Court’s Conley test to determine whether a complaint fails to state a claim upon which relief can be granted.

The test most often applied is found in the leading case of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957): In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Schlosser v. Norwest Bank S.D., 506 N.W.2d 416, 418 (S.D.1993). Recently, however, the Supreme Court abrogated the Conley “no set of facts” standard. Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[T]he Court retired the generous and often disparaged ‘no set of facts’ language because it permitted an ‘approach to pleading [that] would dispense with any showing of a reasonably founded hope that a plaintiff would be able to make a case.’ ” Leventhal v. Schaffer, 2008 WL 111301, *2 (N.D.Iowa 2008) (citing Bell Atlantic, — U.S. at -, 127 S.Ct. at 1968-69). Bell Atlantic replaced the Conley standard with the following:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the “grounds” of his “entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). Factual allegations must be enough to raise a right to relief above the speculative level[.] [T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]

Bell Atlantic, — U.S. at -, 127 S.Ct. at 1964-65 (citations omitted). The Supreme Court explained:

While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant “set out in detail the facts upon which he bases his claim,” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added), Rule 8(a)(2) still requires a “showing,” rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only “fair notice” of the nature of the claim, but also “grounds” on which the claim rests. See 5 Wright & Miller [Federal Practice and Procedure: Civil 3d] § 1202, at 94, 95 (Rule 8(a) “contemplate^] the statement of circumstances, occurrences, and events in support of the claim presented” and does not authorize a pleader’s “bare averment that he wants relief and is entitled to it”).

Id. at -, 127 S.Ct. at 1965 n. 3.

[¶ 8.] Because SDCL 15-6-8(a) also requires a “showing” that the pleader is “entitled” to relief, we adopt the Supreme Court’s new standards. We continue to accept the material allegations as true and construe them in a light most favorable to the pleader to determine whether the allegations allow relief. Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 7, 676 N.W.2d 390, 392-93. Because that determination tests the legal sufficiency of the pleading, we review the matter de novo. Elkjer v. City of Rapid City, 2005 SD 45, ¶ 6, 695 N.W.2d 235, 238.

Ill

A

Whether Sisney’s 42 U.S.C. §§ 1988 and 1985 claims against Best were time barred.

[¶ 9.] Federal civil rights actions must be brought within three years after the alleged constitutional deprivation occurred. SDCL 15-2-15.2 (providing “[a]ny action brought under the federal civil rights statutes may be commenced only within three years after the alleged constitutional deprivation has occurred”). Sisney alleged that Best was the food service provider at SDSP until July 31, 2002. Sisney’s suit was commenced on May 14, 2007, more than four years after Best provided food services. Therefore, Sisney’s federal claims against Best were untimely.

[¶ 10.] Sisney, however, argues that the statute of limitations was tolled by SDCL 15-2-3. That statute provides: “In an action for relief on the ground of fraud the cause of action shall not be deemed to have accrued until the aggrieved party discovers, or has actual or constructive notice of, the facts constituting the fraud.” SDCL 15-2-3. Sisney’s reliance on SDCL 15-2-3 is misplaced because Sisney did not seek relief based upon fraud in connection with his constitutional claims under 42 U.S.C. §§ 1983 and 1985. The circuit court correctly dismissed the federal claims against Best as untimely.

B

Whether Sisney asserted sufficient facts regarding the remaining Defendants under 1$ U.S.C. § 1988 or § 1985.

[¶ 11.] Sisney pleaded that he may have been deprived of kosher bread, and therefore the remaining Defendants violated his rights “guaranteed under the U.S. and South Dakota constitutions.” See supra ¶ 5. Sisney did not, however, identify which provisions of the state or federal constitutions were allegedly violated. More importantly, in his 42 U.S.C. § 1983 action against individual non-state actors, Sisney failed to plead the requirement that those Defendants acted pursuant to an unconstitutional state policy or custom. See Sanders v. Sears, Roebuck Co., 984 F.2d 972, 976 (8thCir.1993). We acknowledge that courts have liberally interpreted pro se civil rights litigation to not always require “language specifically alleging the ‘existence of an unconstitutional policy or custom.’ ” Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8thCir.2004) (citation omitted). Nevertheless, some “language or facts from which an inference could be drawn that [defendants] had a[n illegal] policy or custom” is still required. Crumpley-Patterson, 388 F.3d at 591 (citation omitted). Accordingly, even under the pre-Bell Atlantic standard, Sisney’s failure to include any “allegations, reference, or language by which one could begin to draw an inference that the conduct complained of ... resulted from an unconstitutional policy or custom” renders the complaint deficient. Id. The circuit court’s dismissal of the § 1983 claim is affirmed.

[¶ 12.] Sisney’s § 1985 claim also fails. “Civil rights pleadings are construed liberally[, but] they must not be conclusory and must set forth facts which state a claim as a matter of law.” Davis v. Hall, 992 F.2d 151, 152 (8th Cir.1993) (citing Nickens v. White, 536 F.2d 802, 803 (8th Cir.1976)). The allegations of the conspiracy required for a § 1985 claim must be pleaded with sufficient specificity and factual support to suggest a “meeting of the minds.” Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir.1985) (citation omitted). Therefore, a plaintiff alleging conspiracy is required to “at least allege that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding, and provide some facts suggesting such a meeting of the minds.” Id. See also Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir.1988) (providing that a conspiracy claim requires allegations of specific facts showing a “meeting of minds” among alleged conspirators).

[¶ 13.] In this case, Sisney failed to allege any facts necessary to even infer a meeting of minds or mutual understanding. Sisney failed to state one fact alleging that an agreement existed, what the supposed agreement was, when it was reached, or who was involved; i.e., that an agreement existed between Best and CBM or between Best and Preyer. His complaint merely used the word “conspiracy” without any factual support to infer a meeting of the minds. See supra ¶ 5. Rule 12(b)(5) and Rule (8)(a) require more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic, — U.S. at-, 127 S.Ct. at 1964-65. These rules contemplate a “statement of circumstances, occurrences, and events in support of the claim presented.” Bell Atlantic, — U.S. at -, 127 S.Ct. at 1965 n. 3. Having failed to meet these pleading requirements, Sisney’s complaint failed to state a claim under § 1985.

C

Whether Sisney stated State law claims.

[¶ 14.] The circuit court dismissed Sis-ney’s state law claims, concluding that he either did not raise sufficient facts establishing the claims or the statutes cited were inapposite. Sisney appeals only the dismissal of state law claims under SDCL 37-24-6; 20-10-1; 22-19B-4; and 20-9-32. We therefore limit our discussion to these statutes. See Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 30, 580 N.W.2d 606, 613 (providing, “[fjailure to brief [a] matter supported by case or statutory authority constitutes a waiver of that issue”).

[¶ 15.] Sisney alleged that Defendants engaged in deceptive trade practices in violation of SDCL 37-24-6. This statute provides in part:

It is a deceptive act or practice for any person to:
(1) Knowingly and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise, regardless of whether any person has in fact been mislead, deceived, or damaged thereby....

SDCL 37-24-6 (emphasis added). This statute is, however, a criminal proscription under which Sisney has no individual rights of enforcement. Nygaard v. Sioux Valley Hosp. & Health Sys., 2007 SD 34, 1133, 731 N.W.2d 184, 196. Sisney’s rights, if any, arose under the civil action allowed in SDCL 37-24-31, a related statute that specifically requires a causal connection between the alleged deceptive practice and the damages suffered:

Any person who claims to have been adversely affected by any act or a practice declared to be unlawful by 37-24-6 shall be permitted to bring a civil action for the recovery of actual damages suffered as a result of such act or practice.

(Emphasis added). Therefore, to state a claim under SDCL 37-24-31 and 37-24-6, Sisney must have pleaded that he was adversely affected as a result of a deceptive practice used by the Defendants in connection with their sale or advertising of the bread. See Nygaard, 2007 SD 34, ¶ 33, 731 N.W.2d 184 at 196-97 (providing that to state a claim under SDCL 37-24-31, plaintiffs must have pleaded that then-damages were proximately caused by alleged violations of the trade practices act).

[¶ 16.] In this case, Sisney cannot prove that his claim involved the statute’s core prohibited activity: damages proximately caused by deceptive practices in connection with the sale or advertisement of merchandise. Sisney cannot prove such a claim because he did not acquire the bread in connection with either Best’s or CBM’s practices in their sale or advertisement of their food services. The only trade practices that could have taken place in connection with the sale or advertising of the food services took place between Best/CBM and the State. Sisney was not involved in that transaction. Sis-ney acquired the bread only because he was an inmate who received the bread from the DOC in connection with Sisney’s incarceration. Because Sisney cannot prove that he acquired the bread as a result of any deceptive practice in connection with its sale or advertising by Best or CBM, the circuit court’s dismissal of Sisney’s claim under SDCL 37-24-31 and 37-24-6 is affirmed.

[¶ 17.] Sisney also alleged that Defendants committed deceit in violation of SDCL 20-10-1, which provides: “One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage where he thereby suffers.” In pleading this tort, while malice, intent, knowledge, and conditions of the mind may be generally alleged, “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” SDCL 15 — 6—9(b). The circuit court concluded: Sisney did “nothing more than assert a mere suspicion that the bread being served [was] not kosher-certified. The [c]omplaint contains no attending fact to support such an allegation.” We disagree.

[¶ 18.] As previously noted, the Supreme Court recently explained that although the pleadings must contain something more than “a statement of facts that merely creates a suspicion [of] a legally cognizable right of action,” the review is conducted “on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Bell Atlantic, — U.S. at -, 127 S.Ct. at 1964-65 (citations omitted). We also accept the material allegations as true and construe them in a light most favorable to the pleader to “determine whether the allegations allow relief[.]” Fenske Media Corp., 2004 SD 23, ¶ 7, 676 N.W.2d at 393 (citing Schlosser, 506 N.W.2d at 418).

[¶ 19.] Considering these standards, Sisney’s complaint not only pleaded facts suggesting that the bread provided was not “certified” kosher, but also that it was non-kosher. Sisney pleaded: “that at all times Best represented] the bread given to kosher diets [was] certified kosher,” Complaint ¶ 11; “that because of Best Inc.’s deceit, [Sisney] consumed non-kosher bread,” id. ¶ 15; that at all times, CBM “represented] the bread given to kosher diets [was] certified kosher,” id. ¶ 21; that he “was continually assured by CMB Inc. that all food given to [him] was kosher,” id. ¶ 23; that Preyer’s statement in his affidavit “contradicted] his assurance” that the bread “had kosher certification,” id. ¶ 28; and that “[b]ecause of CMB Inc.’s deceit, [Sisney] consumed non-kosher bread,” id. ¶ 30. Sisney further pleaded: that “at all times” CBM and Best knew that the bread was not certified, and that Preyer previously stated that bread was certified. Id. ¶ 11. Sisney finally asserted that “[t]he fraudulent actions of the defendants ... violated] SDCL 20-10-1.” Id. ¶ 36.

[¶ 20.] These pleadings reference Prey-er’s contradictory statements and contain facts suggesting that because of Defendants’ misrepresentations, Sisney consumed not only “non-certified,” but also non-kosher food. Because these factual averments are specific and SDCL 15-6-9(b) provides that a defendant’s intent or knowledge may be averred generally, Sisney’s allegations stated a claim for deceit under SDCL 20-10-1.

[¶ 21.] Sisney finally alleged that Defendants violated SDCL 22-19B-4 and 20-9-32. SDCL 22-19B-4 is a criminal statute that provides “[a]ny person who, by threats or violence, intentionally prevents another person from performing any lawful act enjoined upon or recommended by the religion which such person professes is guilty of a Class 1 misdemeanor.” Sisney cannot, however, independently enforce criminal statutes. See Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). Therefore, the circuit court’s dismissal of the claim premised on SDCL 22-19B-4 is affirmed.

[¶ 22.] SDCL 20-9-32 provides a similar civil cause of action for a violation of SDCL 22-19B-1. Under SDCL 22-19B-1, it is unlawful for a person to:

[MJaliciously and with the specific intent to intimidate or harass any person ... because of that person’s ... religion ... :(l)[c]ause physical injury to another person; or (2)[d]eface any real or personal property of another person; or (3)[d]amage or destroy any real or personal property of another person; or (4)[t]hreaten, by word or act, to do the acts prohibited[.]

Sisney, however, states no claim under this statute because he makes no claim that Defendants caused or threatened to cause physical injury either to him or his property.

IV

Whether the circuit court abused its discretion in denying Sisney an opportunity to amend his complaint.

[¶ 23.] Sisney argues that the circuit court abused its discretion in failing to give him an opportunity to amend his complaint in order to cure any pleading deficiencies. A circuit court’s decision regarding amendment of the pleadings “will not be disturbed on appeal unless there is a clear abuse of discretion which results in prejudice.” In re T.A., 2003 SD 56, ¶ 38, 663 N.W.2d 225, 237. In this case, Sisney only generally raised the issue of amendment in a brief resisting dismissal. He did not file a motion to amend, nor did he explain what specific factual allegation he would have added to overcome the defects requiring dismissal. For these reasons, the circuit court did not abuse its discretion in declining to make, schedule, and grant (essentially sua sponte) a motion allowing amendment of the complaint.

[¶ 24.] The circuit court’s dismissal of Sisney’s federal claims is affirmed. The dismissal of Sisney’s state law claims under SDCL 37-24-6, 22-19B-4, and 20-9-32 is affirmed. The dismissal of Sisney’s claim under SDCL 20-10-1 is reversed and remanded.

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

      . The Supreme Court observed that under "a focused and literal reading of Conley's ‘no set of facts' standard, a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts’ to support recovery.” Bell Atlantic, - at -, 127 S.Ct. at 1968 (citations omitted). Thus, the Court concluded that the "[no set of facts] phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at -, 127 S.Ct. at 1969.

      . SDCL 15-6-8(a) provides:
      A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain:
      (1) A short and plain statement of the claim showing that the pleader is entitled to relief; and
      (2) A demand for judgment for the relief to which he deems himself entitled.
      Relief in the alternative or of several different types may be demanded.

      . Sisney did allege that Preyer and CBM engaged in a fraudulent "cover-up” regarding bread certification. Sisney suggested that Preyer could have corrected CBM’s alleged unconstitutional act (providing non-kosher food), but covered it up after the fact.
      This allegation is insufficient for two reasons. First, Sisney alleged Preyer's conspiracy was with CBM, Preyer's corporate employer. This type of employer/employee agreement fails to satisfy the separate identity requirements necessary to sustain an alleged conspiracy between two parties. See Larson v. Miller, 76 F.3d 1446, 1456 n. 6 (8th Cir.1996) (providing: "According to the intracorporate conspiracy doctrine, a corporation cannot conspire with itself through its agents when the acts of the agents are within the scope of their employment.”); Meyers v. Starke, 420 F.3d 738, 742 (8th Cir.2005) (providing, "any conspiracy claim under 42 U.S.C. § 1985(2) is barred under the intra-corporate conspiracy doctrine, which allows corporate agents acting within the scope of their employment to be shielded from constituting a conspiracy under § 1985").
      Second, although Sisney pleaded that Prey-er's alleged cover-up constitutes a continuing constitutional violation, after-the-fact conduct following an alleged violation is insufficient because it occurred after the purported violation. Therefore, the subsequent "help” Prey-er may have provided in covering-up an alleged violation could not have been a part of any initial violation depriving Sisney of a right or privilege secured by the Constitution. See generally Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir.2008) (noting that in construing a motion to dismiss on the pleadings, any alleged assistance in furthering a violation of law is irrelevant regarding whether the initial violation was sufficiently pleaded).


text:
    2008 SD 72
    Charles E. SISNEY, Plaintiff and Appellant, v. Tim REISCH-South Dakota Secretary of Corrections (in both his official and individual capacities), and Douglas Weber-Director of Prison Operations for South Dakota, (in both his official and individual capacities), Defendants and Appellees.
    No. 24683.
    Supreme Court of South Dakota.
    Considered on Briefs March 26, 2008.
    Decided July 23, 2008.

      Charles E. Sisney, SD State Penitentiary, Sioux Palls, South Dakota, pro se plaintiff and appellant.
    Jeffrey L. Bratkiewicz, Michele A. Mun-son of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] Charles E. Sisney, an inmate in the South Dakota State Penitentiary (SDSP), filed a pro se complaint alleging that he was a third-party beneficiary of a settlement agreement between the Department of Corrections (DOC) and a former inmate. Sisney claimed that DOC and penitentiary officials breached the settlement agreement when they did not provide him with pre-packaged, certified kosher meals. The circuit court dismissed for failure to state a claim. We reverse, concluding that Sisney pleaded sufficient facts to support the inference that defendants were responsible for enforcing the settlement agreement; that Sisney was a third-party beneficiary of the agreement; and that suit on the agreement was not barred by sovereign immunity.

I

[¶ 2.] Sisney pleaded that he is Jewish and follows a kosher diet as part of his religion. Defendant Tim Reisch is the Secretary of the DOC, and Defendant Douglas Weber is the Director of Prison Operations.

[¶ 3.] In 1998, inmate Philip Heftel filed a suit under 42 U.S.C. § 1983 alleging that the DOC had deprived Heftel of his constitutional right to free exercise of the Jewish religion. The parties ultimately entered into a settlement agreement (hereinafter “Heftel Agreement” or “Agreement”), which Heftel and Jeffrey Bloom-berg (then Secretary of the DOC) signed in February 2000. The Heftel Agreement provided that the DOC “agree[d] to provide a kosher diet to all Jewish inmates who request it,” and that the kosher diet would include “[prepackaged meals which are certified kosher for noon and evening meals[.]”

[¶ 4.] In February of 2007, the SDSP’s food service provider, CBM Inc., quit serving prepackaged kosher meals and began serving a new kosher diet, including a rice and bean mixture prepared and cooked in the SDSP kitchen. Sisney alleged that this change violated the Heftel Agreement and his religious beliefs. Sisney subsequently submitted a grievance through DOC administrative procedures. Weber responded that Sisney was not a party to the Heftel Agreement. Sisney then brought this suit against Reisch and Weber in their individual and official capacities. Sisney alleged that Reisch and Weber breached the Heftel Agreement “in violation of South Dakota Law and Statute(s).”

[¶ 5.] The circuit court dismissed the suit, concluding that Sisney’s claim was barred by statutory immunity, and in addition, the complaint did not contain sufficient factual assertions supporting an inference that either Reisch or Weber was responsible for enforcing the Agreement. The circuit court did not reach the issue of whether Sisney had third-party standing to enforce the Heftel Agreement. Sisney now appeals the dismissal and the denial of an opportunity to amend his pleadings.

II

[¶ 6.] A motion to dismiss tests the legal sufficiency of the pleading, and therefore, we review the grant of a motion to dismiss de novo. Elkjer v. City of Rapid City, 2005 SD 45, ¶ 6, 695 N.W.2d 235, 239. “While a complaint attacked by a Rule 12(b)(5) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’ ” Sisney v. Best, 2008 SD 70, ¶ 7, 754 N.W.2d 804 (quoting Bell Atlantic Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)) (internal citations omitted). The rules “contemplate[ ] [a] statement of circumstances, occurrences, and events in support of the claim presented.” Best, 2008 SD 70, ¶ 7, 754 N.W.2d at 808 (quoting Bell Atlantic, — U.S. at -, 127 S.Ct. at 1965 n. 3) (quoting 5 Wright & Miller Federal Practice and Procedure: Civil 3d § 1202, at 94). Ultimately, the complaint must allege facts, which, when taken as true, raise more than a speculative right to relief. Bell Atlantic, — U.S. at -, 127 S.Ct. at 1965. Furthermore, “[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)( [5]) is appropriate.” Benton v. Merrill Lynch & Co. Inc., 524 F.3d 866, 870 (8th Cir.2008).

Ill

A

[¶ 7.] The circuit court first concluded that the complaint failed to state a claim because it contained “no factual assertions supporting an inference that it was the Defendants’ responsibility to carry out the [Heftel Agreement].” We disagree with this conclusion.

[¶ 8.] The complaint alleged that Reisch is the current Secretary of Corrections. The Agreement reflects that it was executed on behalf of the DOC by Jeffrey Bloomberg, the former Secretary of Corrections. These facts create a legal inference that Reisch, as the current Secretary of Corrections, is the superseding party responsible for carrying out the Agreement. See SDCL 24-1-4 (providing, [t]he state penitentiary and its ancillary facilities shall be under the direction and government of the Department of Corrections); SDCL 1-15-1.3 (providing, “the secretary of corrections shall be qualified by training and - experience to administer the programs of the Department of Corrections”). Similarly, as the alleged Director of Prison Operations for the DOC, Weber’s position creates the inference that he may be responsible for enforcing the Agreement at the penitentiary. At this stage in the proceedings, Sisney is entitled to the inference that it was Reisch’s and Weber’s responsibility to enforce the Hef-tel Agreement at the SDSP.

B

[¶ 9.] On appeal, Defendants reassert their circuit court argument that Sisney was not entitled to enforce the Agreement as a third-party beneficiary. SDCL 53-2-6-provides, “[a] contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it.” In Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, ¶ 13, 632 N.W.2d 856, 858-59, we highlighted the express benefit requirement, noting that the purported third-party beneficiary must clearly show that the contract was entered into with intent to benefit that party:

[W]henever two parties enter into an agreement that appears to have been made expressly for the benefit of a third party, and such agreement has a good and sufficient consideration, the agreement itself creates all the privity there need be between the person for whose benefit the agreement was entered into and the party assuming the obligation, and an action at law should lie regardless of whether there was any obligation existing between the other party to the agreement and the third party. But, before the third party can adopt the agreement entered into and recover thereon, he must show clearly that it was entered into with the intent on the part of the parties thereto that such third party should be benefited thereby.

(Emphasis added). Standing to enforce an agreement as a third-party beneficiary may also be conferred upon a class of individuals. “[T]he terms of the contract must clearly express intent to benefit that party or an identifiable class of which the party is a member.” Verni v. Cleveland Chiropractic College, 212 S.W.3d 150, 153 (Mo.2007). “This intent might, in a given case, sufficiently appear from the contract itself [.] ” Trouten, 2001 SD 106, ¶ 13, 632 N.W.2d at 859.

[¶ 10.] In this case, the Heftel Agreement clearly expressed that the DOC agreed to provide a kosher diet to an identifiable class of which Sisney was a member; i.e., “to all Jewish inmates who request it.” Agreement, ¶ 3. Further, the Agreement expressly reflected an intent to benefit all members of that class: “[i]n-mates who request a kosher diet will receive kosher meals regardless of their custody status;” and the DOC “will provide inmates who request a kosher diet a kosher meal prior to the beginning of the fast day and at the conclusion of the fast.” Agreement, ¶¶ 3, 4. At the pleading stage of the suit, this explicit contractual language reflected the signatories’ intent to provide more than an incidental benefit: the foregoing contractual language raised the inference that the Heftel Agreement was intended to expressly benefit all Jewish inmates who requested a kosher diet. Because Sisney alleged that he was a member of that class, we conclude that Sisney’s complaint was sufficient to state a claim that he is a third-party beneficiary with standing to enforce the Heftel Agreement.

C

[¶ 11.] Defendants, however, argue they were immune from suit under SDCL 3-21-8. That statute provides: “No person ... is liable for failure to provide a prison, jail, or penal or correctional facility, or if such facility is provided, for failure to provide sufficient ... services in a prison or other correctional facility.” SDCL 3-21-8. The circuit court agreed, concluding that this language “indicates a legislative intent to provide ... immunity to the state and state officials, regardless of whether the potential liability will derive from tort or contract.” The court further concluded that “[t]his same analysis can be applied to SDCL 3-21-9[.]” We disagree with the circuit court’s analysis.

[¶ 12.] Sisney sued Defendants in their individual and official capacities. “[I]t is well-settled that suits against officers of the state ‘in their official capacity, [are] in reality [suits] against the State itself.’ ” Dan Nelson, Auto., Inc. v. Viken, 2005 SD 109, ¶ 23, 706 N.W.2d 239, 247 (citations omitted). It is further settled that the State is generally immune from suit under Article III Section 27 of the South Dakota Constitution. With respect to individual capacity suits, state employees who are “sued in an individual capacity [are] entitled to immunity dependent] upon ‘the function performed by the employee.’ ” Casazza v. State, 2000 SD 120, ¶ 11, 616 N.W.2d 872, 875 (citation omitted). State employees are generally immune from suit when they perform discretionary functions, but not when they perform ministerial functions. Wulf v. Senst, 2003 SD 105, ¶ 20, 669 N.W.2d 135, 142. Finally, immunity may have been available under SDCL 3-21-8 and 3-21-9. Therefore, whether acting in official or individual capacities, we may assume without deciding that the Defendants may have been generally cloaked with immunity in performing their duties for the DOC.

[¶ 13.] Nevertheless, even when sovereign immunity is applicable, it is waived to the extent the State entered into a contract and a party or third-party beneficiary sues to enforce that contract. In Wilson v. Hogan, 473 N.W.2d 492, 494 (S.D.1991), this Court noted that the State may waive its immunity “by entering into a contract which implicitly gives the other party to the contract a right of action upon it.” In Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915, 917-18 (S.D.1988), we explicitly stated that “immunity is not a defense to a claim against the state for contractual liability arising out of either governmental or proprietary operations.” Therefore, at the pleading stage of the proceedings, Sisney’s complaint states a claim to the extent that he is pursuing a third-party beneficiary contractual cause of action to enforce the Agreement.

D

[¶ 14.] We finally observe that Sisney’s complaint also sought declaratory relief. SDCL 3-21-8 and 3-21-9 only provide immunity from suits seeking to impose liability. See Clay v. Weber, 2007 SD 45, ¶ 7, 733 N.W.2d 278, 282 (considering SDCL 3-21-8 and SDCL 3-21-9, which immunize persons, political subdivisions, and the state from liability) (emphasis added). See also Dakota Sys., Inc. v. Viken, 2005 SD 27, ¶ 9, 694 N.W.2d 23, 28 (providing that the “declaratory judgment action does not violate the principles of sovereign immunity”). Therefore, immunity is not generally available to the extent Sisney only seeks declaratory relief. “[A] declaratory judgment action attacking the constitutionality of a statute or seeking relief from an invalid act or an abuse of authority by an officer or agent is ... not prohibited by principles governing sovereign immunity.” Nelson, 2005 SD 109, ¶ 27, 706 N.W.2d at 250. For these reasons, Sisney was entitled to pursue his claim for declaratory relief.

[¶ 15.] Considering Sisney’s factual assertions in a light most favorable to the pleader, the complaint stated a third-party beneficiary cause of action for enforcement of the Heftel Agreement and for declaratory relief. In light of this conclusion, we do not consider Sisney’s argument regarding amendment of the complaint.

[¶ 16.] Reversed and remanded.

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

      . The court concluded that Sisney’s complaint merely alleged that Reisch and Weber held positions in the DOC, and that Weber had merely responded to Sisney’s grievance.

      . That statute provides, “[n]o person ... is liable for any injury caused by or resulting from ... [s]ervices or programs administered by or on behalf of the prison, jail, or correctional facility.” SDCL 3-21-9.

      . Defendants argue that Sisney waived the immunity issue because he did not brief it on appeal. Sisney’s brief, however, argues that no immunity is available because the contract mandates that certified kosher meals shall be provided and that the provision of certified kosher meals is a ministerial act for which immunity is unavailable. Thus, the issue of immunity was not waived.

      . For this reason, we need not address the ministerial/discretionary distinction of sovereign immunity and SDCL 3-21-8 and 3-21-9.


author: MEIERHENRY, Justice. SABERS, Justice

text:
    2008 SD 74
    April K. NACE, Plaintiff and Appellee, v. Daniel A. NACE, Defendant and Appellant.
    No. 24618.
    Supreme Court of South Dakota.
    Considered on Briefs May 19, 2008.
    Decided July 30, 2008.

      Marcene J. Smith of Wilkinson & Wilkinson, DeSmet, South Dakota, Attorneys for plaintiff and appellee.
    Michael M. Billion, Aaron J. Emerson of Myers & Billion, L.L.P., Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Daniel Nace appeals a circuit court’s acceptance of a referee’s child support recommendation.

FACTS

[¶ 2.] April and Daniel Nace divorced in January 2006. Daniel, the noncustodial parent of the parties’ two minor children, was ordered to pay April $574 per month in child support. April later petitioned to modify child support alleging a change in her employment and an increase in daycare costs. April also requested deviations, pursuant to SDCL 25-7-10(2) and (6), for the “financial condition of either party” and the “voluntary act reducing either parent’s income.”

[¶ 3.] Daniel and four other family members own Murray " Construction, L.L.C. (the company). Daniel personally owns 18.16 percent of the company. The managing members of the company are Daniel’s mother, Teresa Nace, and his aunt, Bonnie Murray. Initially, 11 percent of the company was gifted to Daniel. In 2006, Daniel purchased approximately 7 percent more of the company from his uncle for $432,700. The company loaned him the funds for the purchase and added the same amount to an account receivable in his name. Daniel provided no out-of-pocket money for the purchase. The account receivable also contained other loans for Daniel’s personal expenses and for his federal tax liability that had been paid by the company on his behalf. The loans were interest free with no promissory notes or payment schedules. All other members of the company, even the managing members, had similar debt to the company for hundreds of thousands of dollars. At the time of the petition, Daniel’s account receivable totaled $567,549.13. Daniel had personally made no payments on the account receivable debt in all of his years as a member. The only reduction of Daniel’s account receivable was an offset of his share of the company’s 2006 bonus against the account balance. Daniel’s net share of the company was valued at $742,296.23.

[¶ 4.] Although a substantial portion of the company’s income was retained, the company paid Daniel $23,400 in compensation plus a bonus of $25,000 and paid his federal income taxes of $18,521. The referee recognized that the bonus was not directly paid to Daniel but concluded that Daniel “received” the payment-because it reduced his debt to the company. The referee made the determination without a finding that Daniel had control over the distribution of the bonus. Relying on Roberts v. Roberts, the referee also concluded that Daniel’s federal income tax liability paid by the company was part of Daniel’s “gross income because the amount of the tax will eventually be deducted from [Daniel’s] capital account as a distribution and applied to the balance due on his loan.” Citing, 2003 SD 75, ¶ 26, 666 N.W.2d 477, 484. Ultimately, the referee recommended an increase in Daniel’s child support obligation to $1,194 per month.

[¶ 5.] Daniel objected to several of the referee’s findings. The circuit court accepted the referee’s findings, conclusions and recommendation. Daniel now appeals from the circuit court’s order. He contends that the referee erroneously included in his gross income, his bonus and his company-paid federal taxes. He claims that he did not receive the money, therefore the amounts should not have been included in his gross income.

ISSUES

1. Whether Daniel’s bonus income was properly included in his gross income for child support purposes.

2. Whether money paid on Daniel’s behalf for tax liability should be used to calculate his gross income for child support purposes.

STANDARD OF REVIEW

[¶ 6.] We review findings of fact under the clearly erroneous standard. Roberts, 2003 SD 75, ¶ 8, 666 N.W.2d at 480 (citation omitted). We review questions of law de novo. Id. “An award of child support will not be disturbed unless the trial court clearly abused its discretion.” Id. (citation omitted).

1. Whether Daniel’s bonus income was properly included in his gross income for child support purposes.

[¶ 7.] Child support obligations are based on the parents’ “means” or ability to pay. Id. ¶ 11, 666 N.W.2d at 480 (citing SDCL 25-7-6.1). In order for Daniel’s “bonus” and the amount paid in taxes on his behalf to be considered gross income for child support purposes, the amounts must first be received by Daniel and then fit within a category listed under SDCL 25-7-6.3. Roberts, 2003 SD 75, ¶ 19, 666 N.W.2d at 481-82. A parent “receives” income when the allotted amount could be used by the parent to “support himself/herself and, thus, his child.” Id. ¶¶ 14-15, 666 N.W.2d at 482. If the income derives “from a business, profession or farming or from rentals, royalties, estates, trusts or other sources, then it must be treated as provided by SDCL 25-7-6.6.” Id. ¶ 19, 666 N.W.2d at 482.

[¶ 8.] Daniel presented evidence that he did not have access to the bonus to support himself because it was applied directly to offset his loan from the company. Normally, before including such a bonus as income, the referee/court would need to determine if the shareholder had the ability to control its distribution. See id. ¶ 21, 666 N.W.2d at 483 (holding that if a shareholder has the ability to control a distribution we deem it constructively received for child support purposes). A shareholder may be considered to have control over and to have received retained company income if the shareholder has the ability to direct distributions. Id. Whether a person can control distributions is a fact specific inquiry. See id.

[¶ 9.] In determining whether a parent/obligor has control over a company’s distributions, other courts have considered a variety of factors. The factors include the following: 1) comparison of the amount of retained income versus the parent/obligor’s gross income and percent of ownership; 2) a history or pattern of past retained income; 3) the company’s need to retain income to “maintain or increase past or current levels of income production as opposed to unnecessary, premature, unrelated or overly aggressive expansion of business,” Reed v. Reed, 1997 WL 34960, at *2 (Ohio Ct.App.1997); 4) whether the retained income is acquired from the current year’s profits or out of past year(s)’ savings; 5) comparison of the ordinary rate of return for a similar investment, Clark v. Clark, 172 Vt. 351, 779 A.2d 42, 53-54 (2001); 6) the ability to receive favorable or fictitious loans (constructive distributions) from the company, see West v. West, 891 So.2d 203, 217-18 (Miss.2004); and 7) “any other factor that bears on the issue of whether the obligor is manipulating his or her income in an effort to avoid the proper payment of child support.” Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn.2005); see also Walker v. Grow, 170 Md.App. 255, 907 A.2d 255, 270-71 (2006) (noting that minority status is not dispositive on control issues stating “nature of the business, the governing documents, and the business and non-business relationship among the shareholders would also have to be considered”). Furthermore, whenever company income is imputed to a parent the circuit court or referee “should consider the totality of the circumstances.” See Kestner v. Clark, 182 P.3d 1117, 1122 (Alaska 2008); see also Reed, 1997 WL 34960, at *2 (noting that a court must analyze the “totality of the financial circumstances” in each case). Although these factors are neither mandatory nor exhaustive, they provide guidance in analyzing whether income retained by a company should be considered when calculating gross income for child support purposes.

[¶ 10.] If the parent is avoiding obligations by cloaking a distribution in debtor/creditor language, the referee may consider it as a distribution of income notwithstanding the language of SDCL 25-7-6.5, which requires a finding of insufficient support before considering a parent’s ability to borrow. See Ochs v. Nelson, 538 N.W.2d 527, 529 (S.D.1995) (noting that although the testimony stated the company must retain its income, the evidence of a shareholder borrowing money without making any repayment on the loan for three years conflicted with this testimony); see also West, 891 So.2d at 217-18 (listing factors to consider). A “loan” may increase a parent’s paper debt; however, if the loan proves to be fictitious the money should be considered a distribution. See Ochs, 538 N.W.2d at 529.

[¶ 11.] In this case, the referee failed to make any specific finding regarding Daniel’s control over the bonus’ distribution. Thus, we remand to the circuit court for the determination of whether Daniel had control over the distribution of the $25,000 bonus amount.

2. Whether money paid on Daniel’s behalf for tax liability should be used to calculate his gross income for child support purposes.

[¶ 12.] Daniel next claims that his tax liability paid by the company should not have been considered in calculating his child support obligation. He contends that he never received this money because the company added the amount of tax liability paid on his behalf to his account receivable total. He also argues that if it is included in his gross income, the referee must consider possible deductions or deviations available under SDCL 25-7-6.7 and SDCL 25-7-6.10. Based on our holding in Roberts, the referee and circuit court did not err by including the tax amount in Daniel’s gross income. Nevertheless, as in Roberts, on remand the referee should consider whether the gross income may be reduced by a deduction under SDCL 25-7-6.7 or whether the set schedule amount may be deviated from under SDCL 25-7-6.10. See Roberts, 2003 SD 75, ¶ 26, 666 N.W.2d at 484.

[¶ 13.] We reverse and remand.

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

[¶ 15.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 16.] I write specially to point out that upon proper application, the referee can consider alternatively the value of the obligor’s interest in this family owned business for the purpose of support payments. See SDCL 25-7-6.5 (providing that “[i]f a child’s needs are not being met through the income of the parents, assets shall be considered. If the parents have savings, life insurance, or other assets in amounts unrelated to income, these holdings shall be considered. The parents’ ability to borrow may be used to determine financial ability.”).

      . SDCL 25-7-6.3 provides as follows:
      The monthly net income of each parent shall be determined by the parent’s gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
      (1) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated;
      (2) Self-employment income including gain, profit, or loss from a business, farm, or profession;

        (3) Periodic payments from pensions or retirement programs, including social security or veteran's benefits, disability payments, or insurance contracts;
      (4) Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets;
      (5) Gain or loss from the sale, trade, or conversion of capital assets;
      (6) Unemployment insurance benefits;
      (7) Worker's compensation benefits; and
      (8) Benefits in lieu of compensation including military pay allowances.
      If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

      . Daniel alternatively argued that if the $25,000 bonus is included in his gross income, it should be offset by the increase in his accounts receivable for the company’s payment of his tax obligation. Daniel did not make this argument to the referee or circuit court, and we will not consider it on appeal. See SDCL 25-7A-6 (noting that the circuit court's “hearing [is] to be solely on the record established before the referee").