author: HALBROOKS, Judge.

text:
    In re Alan Robert WEBER, Petitioner, Respondent, Beth Marie Dalbec, Respondent, v. W.P.W., Appellant, and In re Alan Robert Weber, Petitioner, Appellant, v. Beth Marie Dalbec, Respondent.
    Nos. CX-02-791, C2-02-820.
    Court of Appeals of Minnesota.
    Dec. 10, 2002.

      S. Warren Gale, S. Warren Gale Law Office, P.A., Bloomington, MN, for respondent Alan Weber.
    Jeffrey P. Hicken, Hieken, Scott & Howard, P.A., Anoka, MN, for respondent Beth Dalbec.
    Stuart E. Gale, Stuart E. Gale Law Offices, Bloomington, MN, for appellant W.P.W.
    Considered and decided by TOUSSAINT, Chief Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

In this consolidated appeal, appellant W.P.W. disputes the district court’s denial of his motion to appoint a guardian ad litem under Minn.Stat. § 525.6175 (2000), the statute governing the appointment of guardians in probate matters, and appellant Alan Weber challenges the district court’s refusal to conduct an evidentiary-hearing on his motion to modify custody. Because (1) Minn.Stat. § 525.6175 applies to the appointment of guardians in probate matters only, (2) Weber failed to establish a prima facie case for modification under the Nice-Petersen factors and Minn.Stat. § 518.18(d) (Supp.2001), (3) the district court’s order did not violate WP.W.’s right to counsel, and (4) the remaining issues raised do not provide a basis for relief, we affirm.

FACTS

This matter arises out of a very acrimonious custody battle. The marriage of appellant Alan Robert Weber and respondent Beth Marie Dalbec was dissolved on February 2, 1998. Following the parties’ stipulation, the court awarded Dalbec sole legal and physical custody of the couple’s children, appellant W.P.W. (now age 15) and C.W.W. (now age ten). Weber was granted reasonable and liberal visitation.

On December 21, 2001, W.P.W. brought a motion pursuant to Minn.Stat. § 525.6175 (2000) to appoint his maternal uncle, Bradley Dalbec, as his guardian ad litem (GAL). W.P.W.’s objective in making the motion was so that Bradley Dalbec could assist him with a motion for a change of custody to live with his father.

On January 22, 2002, Beth Marie Dalbec filed a motion, inter alia, to dismiss WJP.W.’s motion and to obtain supervised visitation between W.P.W. and Weber. In her responsive affidavit, Dalbec alleged that Weber manipulated and emotionally harmed W.P.W.

On February 14, 2002, W.P.W. filed a second motion that sought a change of permanent and temporary physical custody to his father subject to reasonable visitation with his mother. Weber simultaneously filed a motion, seeking, inter alia, to obtain permanent and temporary physical custody of both minor children and to appoint Bradley Dalbec as GAL for both minor children. Dalbec opposed both motions.

On March 8, 2002, the court issued an order denying, with prejudice, W.P.W.’s motion for the appointment of Bradley Dalbec as GAL and his motion for a change in custody. The court found that W.P.W. lacked standing to bring a motion for change of custody and that the procedure for appointment of a GAL in family law cases is properly set forth in Minn. R. Gen. Pract. 904.01 and not Minn.Stat. § 525.6175.

The court dismissed, without prejudice, Weber’s motions for modification of custody and a finding that the property settlement was fully paid on the basis that the motions were untimely. The court ordered the appointment of a GAL and scheduled an evidentiary hearing for April 26, 2002, on the issues of whether or not Weber’s visitation should be restricted and whether his child support obligation was commensurate with the child support guidelines. The court also ordered the GAL to issue a report on the visitation issue and ordered Weber to produce pertinent wage information before the hearing. Additionally, the court ordered that the attorney for W.P.W. and Weber’s attorney should not meet with or discuss issues relating to the litigation with the children without first bringing a motion before the court.

In a report dated April 10, 2002, the GAL expressed concern that, “Mr. Weber and [W.P.W.] use the exact same words and phrases [in reference to Dalbec and the court proceedings],” and that “[t]he parroting was incredible.” The GAL also reported that W.P.W. said that Weber helped him to “set my mom up” and “encouraged” misbehavior to cause his mother to “throw” him out. The GAL noted that, “[n]either child indicated being in any type [of] emotional or physical danger or being neglected [by Dalbec].” The GAL concluded that, although Weber had endangered W.P.W.’s emotional health and impaired his emotional development by putting him in the middle of a bitter custody dispute, supervised or restricted parenting time would not benefit W.P.W. because of his age and his bond to his father. She recommended a 30-day break from visitation with Weber so that Dalbec could “regain control of her home” and that the parents communicate through the visitation expeditor and not through the children.

The court held the scheduled hearing on April 26, 2002. After reviewing the GAL’s report and listening to counsel’s arguments on the custody issue, the court determined that (1) there had been a significant change of circumstances based on W.P.W.’s change in preference to live with Weber, but that the change resulted from Weber’s manipulation of W.P.W.; (2) Weber’s insistence on involving W.P.W. in the custody dispute, despite a court order prohibiting such conduct; failure to hold W.P.W. accountable for bad behavior; and lack of support for W.P.W.’s ongoing involvement with Dalbec resulted in endangerment of W.P.W.’s emotional health and impairment of his emotional development; (3) there was no showing of endangerment of W.P.W. while in Dalbec’s home; and (4) W.P.W. would be harmed by living with his father because of Weber’s efforts to manipulate W.P.W. and alienate him from Dalbec. Weber’s motion for an evidentia-ry hearing on the change-of-custody motion was denied on the ground that Weber had failed to establish a prima facie case.

ISSUES
1. Did the- district court err in denying WJP.W.’s motion for the appointment of a guardian ad litem of his choice under Minn.Stat. § 525.6175 (2000), a probate statute?
2. Did the district court abuse its discretion by denying Weber an eviden-tiary hearing on his change-of-custody motion?
3. Did the district court improperly preclude the attorney for W.P.W. and the attorney for Weber to discuss any issue relating to the litigation, child custody, or visitation with W.P.W. without first obtaining the court’s permission?

ANALYSIS

I. Guardian Ad Litem

Relying on Minn.Stat. § 525.6175 (2000), a probate statute, W.P.W. argues that the district court erred by failing to appoint the GAL of his choosing. Minn. Stat. § 525.6175 provides that the court shall appoint a guardian nominated by a minor in a probate proceeding, “if the minor is 14 years of age or older, unless the court finds the appointment contrary to the best interests of the minor.”

W.P.W. cites Ross v. Ross, 477 N.W.2d 753, 756-57 (Minn.App.1991), in support of his argument that Minn.Stat. § 525.6175 applies in a custody proceeding. The issue before us in Ross was whether the father, the noncustodial parent, was entitled to an evidentiary hearing on his motion for modification of custody. Id. at 755. We con-•eluded that the father’s affidavit created a prima facie case of endangerment to the child’s health or emotional well being that necessitated a hearing. Id. at 756. In reaching that conclusion, we relied, in part, on the age of that child (17) and noted that Minnesota law does sometimes give deference to the choice of an older teenager, citing Minn.Stat. § 525.6175. Id. But Ross does not stand for the proposition that Minn.Stat. § 525.6175 is applicable to a custody-modification proceeding in a family law context.

Indeed, Minn.Stat. § 525.6175 should not apply to the appointment of a GAL in a custody-modification proceeding because a guardian in a probate matter possesses significantly different powers and duties than a guardian in a family law matter. See Minn.Stat. § 525.619 (2000). The district court did not err in concluding that, “[t]he goal in [family law] cases is ‘the prompt appointment of an independent guardian ad litem to advocate for the best interests of the child.’ ” Minn. R. Gen. Pract. 904.03.

II. Custody Modification

Weber disputes the district court’s denial of his motion to modify custody without conducting an evidentiary hearing. This court applies an abuse-of-discretion standard in reviewing a district court’s decision to dismiss a custody-modification petition without an evidentiary hearing. Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn.App.1997). We defer to the opportunity of the trial court to assess the credibility of the witnesses. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988) (citing Minn. R. Civ. P. 52.01).

The party seeking a custody modification must submit an affidavit asserting sufficient justification for the modification. Minn.Stat. § 518.185 (2000). To obtain an evidentiary hearing on a custody-modification petition, the moving party must establish the following four elements of a prima facie case: (1) a change in the circumstances of the child or custodian, (2) that a modification would serve the best interests of the child, (3) that the child’s present environment endangers his physical or emotional health or emotional development, and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change. Geibe, 571 N.W.2d at 777-78.

In determining whether the moving party has established a prima facie case, the district court must accept the facts in the moving party’s affidavit as true. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). If the moving party’s affidavit does not allege facts that, if true, would provide sufficient grounds for modification, the court need not grant an evidentiary hearing. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn.App.1989), review denied (Minn. June 21, 1989). But if some dispute exists as to whether the present environment endangers the child’s emotional development, an evidentiary hearing would be helpful and is justified. Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.App.1991). Here, appellant’s affidavits do not allege facts that warrant a separate evi-dentiary hearing.

A. Change in Circumstance

To warrant modification of custody, the change in circumstances must be significant and must have occurred since the original custody order. Roehrdanz, 438 N.W.2d at 690. Moreover, the change in circumstances must endanger the child’s physical or emotional health or development. Nice-Petersen, 310 N.W.2d at 472 (citing Minn.Stat. § 518.18(d)(iii) (1980)). A child’s preference to live with a different parent may constitute a change in circumstances sufficient to warrant an evidentia-ry hearing. Geibe, 571 N.W.2d at 778. But a stated preference does not, by itself, mandate that the court hold an evidentiary hearing. Id. Most importantly, a district court may deny an evidentiary hearing “where it is obvious from the record that a child’s stated preference results from manipulation by the moving party.” Id. Although the district court must disregard any directly contradictory statements in the nonmoving party’s submissions, it “may take note of statements in [the non-moving party’s submissions] that explain the circumstances surrounding the [moving party’s] accusations.” Id. at 779.

Here, the district court determined that W.P.W.’s “expressed preference” to live with his father “[was] significant and [had] occurred since the last custody order,” but that W.P.W.’s “expressed preference for a change in custody resulted from manipulation by his father.” The record supports the district court’s finding of manipulation.

The district court relied in part on the GAL’s conclusion that the change of circumstances resulted from Weber’s manipulation of W.P.W. The district court also properly took note of statements in Dal-bec’s affidavit that explained the circumstances. Taken together, the record supported the conclusions that

the signs of alienation could not be more clear — a campaign of hatred, a failure of guilt on the minor child for treating the parent with malice, the parroting of adult language, and a declaration of independence.

The record reflects that the district court determinations were not clearly erroneous, so we will not disturb the conclusion that manipulation was a factor in this case.

B. Best Interests of the Child

A child’s best interests are determined according to the factors listed in Minn.Sta.ti. § 518.17 (2000). Geibe, 571 N.W.2d at 778. The district court noted that Weber failed to directly address W.P.W.’s best interests in either of his affidavits. Because of the absence of the best-interests factors discussed by Weber, the court again relied on findings by the GAL. The GAL did not believe that a change in custody would be in W.P.W.’s best interests. For example, the GAL’s discomfort with the fact that Weber continued to involve W.P.W. in the details of the custody and dissolution, contrary to the court’s order, weighs against the best-interests factor considering “the interaction and interrelationship of the child with a parent or parents [and] siblings.” Minn. Stat. § 518.17, subd. 1(5). The GAL’s belief that Weber would not support W.P.W.’s continued relationship with his current primary caregiver, his mother, who would also retain custody of his brother, weighs against the above factor and the “intimacy of the relationship between each parent and the child.” Id., subd. 1(4), (5). The GAL also evidenced concern that Weber did not hold W.P.W. accountable for his own bad behaviors, which could result in problems in school and in the community. Id., subd. 1(6). Moreover, although the best-interests-of-the-child factors include a consideration of the child’s preference, as discussed above, the record supports the district court’s finding that the preference stems from manipulation by Weber. Even after reviewing the facts alleged by Weber and taking the facts to be true, the district court determined that those facts did not support a finding that modification would be in the best interests of W.P.W. In this regard, the court did not abuse its discretion.

C. Endangerment

Weber makes two primary endangerment arguments: (1) that Dalbec abused W.P.W., and (2) that the denial of a teenager’s custodial preference demonstrates endangerment.

Allegations of physical and emotional abuse are indicators of endangerment, but only when the degree of danger is significant. Ross, 477 N.W.2d at 756. A district court may properly deny an evidentiary hearing where the affidavit submitted in support of a modification of custody “was devoid of allegations supported by any specific, credible evidence.” Axford v. Axford, 402 N.W.2d 143, 145 (Minn.App.1987). Importantly, in order to establish danger to a child’s welfare, a parent’s conduct must be shown to result in an actual adverse effect on the child. Dabill v. Dabill, 514 N.W.2d 590, 595-96 (Minn.App.1994). For example, behavioral problems and poor school performance by the child have served as indications of endangerment to a child’s physical and emotional health. Kimmel v. Kimmel, 392 N.W.2d 904, 908 (Minn.App.1986), review denied (Minn. Oct. 29, 1986).

Weber alleges that Dalbec pulled C.W.W. downstairs by a leg, that Dalbec often yelled obscenities, heaped physical and emotional abuse on the boys, and that one Easter, she pulled W.P.W. off the couch by his hair while screaming at him because he had dirt on his pants. The record shows that Weber petitioned for, and was denied an order for protection for the minor children when Dalbec allegedly “stomped” on W.P.W. But in order to establish danger to a child’s welfare, Weber must show that Dalbec’s conduct resulted in an actual adverse effect on the child. Weber presented no evidence demonstrating any such adverse effect. In this case, the district court rejected Weber’s allegations because he failed to allege specific facts and because the allegations presented in Weber’s affidavits were not supported by first-hand knowledge. The court also relied on the GAL’s report, which found no evidence of physical or emotional endangerment of W.P.W. in the mother’s environment. We conclude that the district court did not abuse its discretion.

Weber next argues that, “[t]he choice of an older teenage child is an overwhelming consideration m* • * deciding whether he is endangered by preserving the custodial placement he opposes.” Ross, 477 N.W.2d at 756. But while a child’s preference may justify an evidentiary hearing, a child’s preference does not alone provide sufficient evidence of endangerment. Geibe, 571 N.W.2d at 778-79.

In Ross, the appellant established a pri-ma facie case because the teenage child held a strong preference to live with his father, the child physically relocated to the father’s home, and the child suffered emotional distress that led to poor school performance. Ross, 477 N.W.2d at 754. Here, by contrast, the record demonstrates only that the child wishes to change custody. Because none of the other endangerment elements are present and a change in preference alone does not prove emotional endangerment, Geibe, 571 N.W.2d at 779, the district court did not abuse its discretion in determining that evidence did not establish endangerment.

D. Balance of Harm

Appellant must next show that the advantage of modifying custody outweighs the harm likely to be caused by the change. Roehrdanz, 438 N.W.2d at 690. Minnesota law presumes that stability in custody is in a child’s best interests. Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn.App.1990). While Minnesota courts have sometimes endorsed an older child’s custody preference, those cases have predominantly involved the preference to remain in the present arrangement or to return to a previous long-term custodial arrangement. Geibe, 571 N.W.2d at 780. Here, by contrast, the district court found that Weber’s affidavits failed to establish that W.P.W.’s desire to change living arrangements, and to live with a parent with whom he had never lived before, would benefit the child. Because W.P.W. was not endangered living with Dalbec, and because Weber’s permissive parenting and manipulation would harm W.P.W., the district court did not abuse its discretion in concluding that the benefit of custody modification would not outweigh the harm likely to be caused by the change.

III. Attorney Contact

W.P.W. claims that paragraph 21 of the district court’s March 3, 2002 order prohibits WP.W.’s attorney from meeting with him under any circumstances. W.P.W. contends that because he was on probation to the Wright County Court Services, and could face further penalties, Minn. R. Juv. P. 15.07 requires that he have access to counsel. '

The express language in the order belies W.P.W.’s reading of the order. The order states that:

The attorney for the minor child and the attorney for Petitioner shall not meet with the minor children or discuss any issues relating to this litigation, child custody or visitation with the minor children. * * * If the attorney representing Petitioner wishes to meet with either minor child, he shall bring a motion before the Court requesting permission to do so.

The order does not preclude W.P.W. from discussing any issues relating to probation or other juvenile protection with his attorney. The court merely precludes the attorney- from discussing custody issues. In the context of this acrimonious proceeding, where the father was found to be alienating his son from his mother, this limitation was not an abuse of the court’s discretion.

Weber and W.P.W. raise several other issues on appeal. They argue that the court erred in (1) appointing a GAL to conduct parenting-time studies and other investigations, (2) ignoring the untimeliness of Dalbec’s motion and not granting a continuance, (3) denying W.P.W.’s standing to seek relief in his parents’ dissolution proceeding, and (4) denying a continuance for an allegedly untimely motion, and that on remand, the court should be directed to recuse itself in light of the “personal opinions” expressed in the order. After fully examining these additional issues, we conclude that they lack merit.

DECISION

The district court did not err in concluding that W.P.W. may not rely on Minn. Stat. § 525.6175 (2000), a probate statute, for the appointment of a guardian ad litem in a custody-modification proceeding. Further, the district court did not violate W.P.W.’s right to counsel or abuse its discretion by denying Weber’s motion for modification of custody without an eviden-tiary hearing.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 ND 195
    Danielle GREYBULL, Plaintiff and Appellant v. Harold HARLAN, Defendant and Appellee.
    No. 20020204.
    Supreme Court of North Dakota.
    Dec. 6, 2002.
    Danielle Greybull, pro se, Jamestown, submitted on brief.
    Harold Harlan, pro se, c/o UTTC, Bismarck, no appearance.
   PER CURIAM.

[¶ 1] Danielle Greybull appeals from the trial court’s denial of her motion to reduce child support payments. We summarily affirm the trial court’s judgment under Rule 35.1(a)(7), N.D.R.App.P. Ramsey County Social Servs. Bd. v. Kamara, 2002 ND 192, 653 N.W.2d 693.

[¶ 2JVANDE WALLE, C.J., and NEUMANN, KAPSNER, MARING, and ALLAN L. SCHMALENBERGER, District Judge, concur.

[¶ 3] The Honorable ALLAN L. SCHMALENBERGER, District Judge, sitting in place of SANDSTROM, J., disqualified.


author: NEUMANN, Justice.

text:
    2002 ND 196
    Robert A. LARSON, Plaintiff and Appellant, v. Patricia A. LARSON, Defendant and Appellee.
    No. 20020129.
    Supreme Court of North Dakota.
    Dec. 10, 2002.

      Henry H. Howe, Howe & Seaworth, Grand Forks, ND, for plaintiff and appellant.

      Douglas A. Christensen, Pearson Christensen, Grand Forks, ND, for defendant and appellee.
   NEUMANN, Justice.

[¶ 1] Robert A. Larson appealed from an order denying his motion to reconsider an earlier post-trial order denying his motion for a new trial and for relief from judgment, and his motion to amend findings of fact and conclusions of law. We conclude the trial court did not abuse its discretion in denying Larson’s motion to reconsider, and we award Patricia A. Larson her attorney fees for this appeal under N.D.R.App.P. 38. We affirm the order and remand to the trial court for a determination of Patricia’s reasonable attorney fees for this appeal.

I

[¶ 2] In October 1999, Robert sued Patricia for divorce after a nearly 20-year marriage. On the morning of the scheduled trial, the court met in chambers with the parties’ attorneys and encouraged settlement of the marital property division. The attorneys and their clients engaged in settlement discussions throughout the morning, and a settlement was eventually placed on the record. A judgment based on the settlement was entered, and on February 5, 2001, Patricia’s counsel served by mail the notice of entry of judgment on Robert’s counsel.

[¶ 3] On February 23, 2001, Robert, through a new attorney, served by mail a motion for new trial and for relief from judgment under N.D.R.Civ.P.' 59 and 60, and for amended findings of fact and conclusions of law. This motion, which was filed on February 26, 2001, was based on Robert’s alleged “accidental over-medication which prevented him from participating in the settlement of his case on the day of trial.” The trial court held a hearing on the motion on October 31, 2001, and on December 5, 2001, issued an order denying the motion. The court ruled Robert had failed to establish “extraordinary circumstances required - for relief’ under N.D.R.Civ.P. 59 and 60, and “because Robert has accepted material benefits under the cont[r]act, he is now precluded from having the Stipulation rescinded.” On December 18, 2001, Robert’s counsel served by mail notice of entry of this order on Patricia’s counsel.

[¶ 4] On February 19, 2002, Robert, through another new attorney,' served by fax a motion to reconsider the trial court’s December 5, 2001 order on Patricia’s counsel. The record shows this motion to reconsider was not filed with the court until February 20, 2002. Robert argued his “inadvertent overdose” of medication made it impossible for him “to fully and knowingly participate in the negotiation process for the stipulation,” and the settlement agreement was unconscionable because the “off the record” pretrial chambers conference prejudiced him. Following a hearing, the trial court issued an order denying the motion for reconsideration on March 22, 2002. The court reasoned, “no new arguments were presented by the plaintiff or his counsel either during argument, in affidavit form, or in the plaintiffs brief,” and “all of the issues or matters raised by plaintiffs counsel during this oral argument were known to the Court when the Court issued its order dated December 5, 2001.” Patricia’s counsel served by mail the notice of this order on Robert’s counsel on March 25, 2002. On May 21, 2002, Robert served and filed his notice of appeal from the trial court’s March 22, 2002 order denying his motion for reconsideration.

II

[¶ 5] On appeal, Robert argues the trial court erred in failing to grant him a new trial and relief from the judgment under N.D.R.Civ.P. 59 and 60, and in failing to amend the findings of fact and conclusions of law. However, Robert has appealed from the trial court’s March 22, 2002 order denying his motion to reconsider, not from the trial court’s December 5, 2001 order denying his motion for new trial, relief from the judgment, and motion for amended • findings and conclusions. Robert’s attempt to raise issues decided by the December 5, 2001 order is improper because the time for appeal from that order was not tolled by his motion for reconsideration and, consequently, an appeal from the December 5 order is untimely.

[¶ 6] Under N.D.R.App.P. 4(a), a notice of appeal must be filed “within 60 days of service of notice of entry of the judgment or order appealed from.” However, the time for filing a notice of appeal may be tolled under certain circumstances:

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party under the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under N.D.R.Civ.P. 50(b); (2) granting or denying a motion under N.D.R.Civ.P. 52(b), to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under N.D.R.Civ.P. 54, for attorneys’ fees; (4) granting or denying a motion under N.D.R.Civ.P. 59, to alter or amend the judgment; (5) denying a motion for a new trial under N.D.R.Civ.P. 59; or (6) granting or denying a motion for relief under N.D.R.Civ.P. 60, if the motion is served and filed no later than 15 days after notice of entry of judgment.

Id.

[¶ 7] This Court has ruled a timely motion for reconsideration of a judgment should be treated as á motion to alter or amend the judgment under N.D.R.Civ.P. 59 for purposes of tolling the time period for filing a notice of appeal. See Continental Cas. Co. v. Kinsey, 499 N.W.2d 574, 582 (N.D.1993). An untimely motion does not toll the running of the time for filing a notice of appeal under N.D.R.App.P. 4(a). See Schaan v. Magic City Beverage Co., 2000 ND 71, ¶ 10, 609 N.W.2d 82. A motion to alter or amend a judgment is timely under N.D.R.Civ.P. 59(j) only if it is “served and filed no later than 15 days after notice of entry of the judgment.”

[¶ 8] On December 18, 2001, Robert’s counsel served by mail notice of entry of the trial court’s December 5, 2001 order. Robert’s motion for reconsideration was not served upon Patricia’s counsel until February 19, 2002, and it was not filed with the court until February 20, 2002, far beyond the 15-day time period required to toll the 60-day time period for filing the notice of appeal. Robert served and filed his notice of appeal on May 21, 2002, again far beyond the 60-day limit to appeal from the December 5, 2001 order.

[¶ 9] There is a more fundamental reason an appeal from the December 5, 2001 order is untimely. Federal courts construing Fed.R.App.P. 4(a) have consistently held that a motion to reconsider an order disposing of a post-trial motion of the kind enumerated in Rule 4(a) does not further toll the appeal period. See, e.g., Johnson v. Teamsters Local 559, 102 F.3d 21, 29-30 (1st Cir.1996); Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 390 (1st Cir.1994); Bane v. Netlink, Inc., 925 F.2d 637, 639 n. 1 (3rd Cir.1991); Moody v. Pepsi-Cola Metro. Bottling Co., Inc., 915 F.2d 201, 206 (6th Cir.1990); Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986); American Sec. Bank; N. A. v. John Y. Harrison Realty, Inc., 670 F.2d 317, 320 (D.C.Cir.1982); Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1206 (5th Cir.1978). See also 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3950.4 (1999); Annot., Tolling of time for filing notice of appeal in civil action in federal court under Rule U(a)(L) of Federal Rules of Appellate Procedure, 74 A.L.R. Fed. 516 § 5 (1985). Federal courts recognize an exception to the general rule if a grant of the earlier post-trial motion effectively results in a new judgment and the motion to reconsider is filed by the adversely affected party requesting reinstatement of the original judgment. See Johnson, 102 F.3d at 29-30; Moody, 915 F.2d at 206. However, that situation is not present in this case.

[¶ 10] Robert argues Fed. RApp.P. 4(a) contains some language that differs from N.D.R.App.P. 4(a), so we should not interpret our state rule like the federal courts interpret the federal rule. We see nothing in the language of the federal rule that would preclude application of the tolling limitations in North Dakota. The reason for the general rule against successive post-trial motions tolling the appeal period is straightforward: “The time limit would be a joke if parties could continually file new motions, preventing the judgment from becoming final.” Daley, 799 F.2d at 347. “Allowing subsequent motions to repeatedly toll the filing period for a notice of appeal would encourage frivolous motions and undermine a fundamental canon of our legal system, to promote the finality of judgments.” Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir.1996). Several state courts have also applied the general rule that a motion to reconsider an order disposing of a time-tolling post-trial motion does not extend the time to file a notice of appeal. See, e.g., Henderson v. Koveleski, 717 So.2d 803, 806 (Ala.Civ.App.1998); Dunlap v. Cassia Mem’l Hosp., 134 Idaho 233, 999 P.2d 888, 891 (2000); Calloway v. State, 500 N.E.2d 1196, 1198 (Ind.1986). See also 5 Am.Jur.2d Appellate Review § 310 ■(1995). We follow this rule, and conclude Robert’s motion for reconsideration could not toll the time for taking an appeal from the trial court’s December 5, 2001 order. Consequently, the merits of the trial court’s denial of the motion for new trial, relief from the judgment, and motion for amended findings and conclusions are not before us in this appeal. See Aybar v. Crispin-Reyes, 118 F.3d 10, 14-15 (1st Cir.1997); Dunlap, 999 P.2d at 892.

[¶ 11] Robert did timely file a notice of appeal from the trial court’s March 22, 2002 order denying his motion for reconsideration. A trial court’s denial of a motion for reconsideration will not be reversed on appeal absent a manifest abuse of discretion. Austin v. Towne, 1997 ND 59, ¶ 8, 560 N.W.2d 895. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. Geinert v. Geinert, 2002 ND 135, ¶ 18, 649 N.W.2d 237.

[¶ 12] Robert presented no new evidence or arguments to the court on the motion to reconsider, and the trial court said all the issues and circumstances raised “were known to the Court when the Court issued” its December 5, 2001 order. We conclude the trial court did not abuse its discretion in denying Robert’s motion for reconsideration.

Ill

[¶ 13] Patricia requests attorney fees for this appeal under N.D.R.App.P. 38, which allows an award of attorney fees if the appeal is frivolous. An appeal is frivolous if it is flagrantly groundless, devoid of merit, or demonstrates persistence in the course of litigation which could be seen as evidence of bad faith. Matter of Estate of Opatz, 554 N.W.2d 813, 817 (N.D.1996). Considering that Robert presented absolutely nothing new for the trial court to consider in support of his motion for reconsideration, we conclude his appeal is flagrantly groundless and Patricia is entitled to her attorney fees for the appeal. Because Patricia has not documented her attorney fees, we remand to the trial court for a determination of reasonable attorney fees for this appeal. See Jorgenson v. Ratajczak, 1999 ND 65, ¶ 26, 592 N.W.2d 527.

IV

[¶ 14] We affirm the order and remand for a determination of Patricia’s reasonable attorney fees for this appeal.

[¶ 15] GERALD W. VANDE WALLE, C.J., EVERETT NELS OLSON, DONALD L. JORGENSEN, D.J., and DALE V. SANDSTROM, JJ., concur.

[¶ 16] The Honorable DONALD L. JORGENSEN, D.J., and the Honorable EVERETT NELS OLSON, D.J., sitting in place of KAPSNER, J., and MARING, J., disqualified.

      . Robert has moved in this Court to supplement the record with a letter from the Traill County Clerk of Court stating Robert's motion for reconsideration was actually filed on February 19, 2002, rather than on February 20, 2002. Because whether the motion for reconsideration was filed on February 19 or 20 is irrelevant under the circumstances, we need not rule on the motion to supplement the record.


author: KONENKAMP, Justice.

text:
    2002 SD 136
    CARSTENSEN CONTRACTING, INC., Plaintiff and Appellee, v. MID-DAKOTA RURAL WATER SYSTEM, INC., Defendant and Appellant.
    No. 22345.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 26, 2002.
    Decided Nov. 13, 2002.
    Mark V. Meierhenry of Danforth, Meier-henry & Meierhenry Sioux Falls, South Dakota, Attorneys for plaintiff and appel-lee.
    Timothy M. Engel of May, Adam, Gerdes & Thompson Pierre, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this construction contract dispute, we must decide whether a requirement in the contract that the general contractor pay “all claims growing out of the lawful demand of’ subcontractors, laborers, mechanics, materialmen, furnishers and suppliers means claims only on which a mechanic’s lien has been filed. In granting summary judgment, the circuit court held that the general contractor had no duty to pay the unpaid bills from a bankrupt subcontractor’s suppliers, since the suppliers filed no mechanic’s liens to secure their claims. Because the filing of a mechanic’s lien is not what makes a claim “lawful,” we conclude that, under the terms of the contract, the owner had the right to withhold the sums necessary to pay claims against the project, even if no mechanic’s lien had been filed to secure those claims. We reverse.

Background

[¶ 2.] This is a contract dispute between Carstensen Contracting, Inc. and Mid-Dakota Rural Water System, Inc. Carstensen, a general construction contractor experienced in the building of rural and municipal water systems, is a Minnesota corporation, authorized to do business in South Dakota. Mid Dakota, a South Dakota nonprofit corporation headquartered in Miller, owns and operates a rural water system that provides potable water to rural and municipal residents of east central South Dakota.

[¶ 3.] The parties stipulated to an extensive set of facts, some of which will be recited here. The documents relevant to this dispute are the Agreement, General Conditions, and Supplemental General Conditions (collectively, the contract documents). Mid-Dakota prepared these documents; Carstensen executed them in the form supplied by Mid-Dakota. The contract called for the construction of a rural distribution pipeline and related appurtenances in Hand and Hyde Counties.

[¶ 4.] Carstensen engaged J & M Gravel, Inc., to act as a subcontractor on the project. In the course of its work, J & M incurred certain debts for various items used on, and related to, the project. Such items included rental charges and fuel for equipment, general supplies, food, and housing for J & M’s employees. Carsten-sen alleges that the last date upon which J & M supplied or used services, labor, equipment, or materials was November 2, 2000. Mid-Dakota avers that J & M supplied labor and materials as late as January 29, 2001.

[¶ 5.] No supplier or subcontractor for J & M Gravel filed a mechanic’s or mate-rialmen’s lien against the project. See generally SDCL Ch. 44-9. However, beginning on January 26, 2001, Mid-Dakota began receiving notices from various suppliers of J & M that it had not paid for items it had used. These claims amounted to nearly $160,000.

[¶ 6.] At least two of J & M’s suppliers have alleged that a representative of Car-stensen encouraged them not to file mechanic’s or materialmen’s hens against the project, telling them that Carstensen would “take care of’ any unpaid bills owed by J & M. Mid-Dakota’s engineers are prepared to testify that, in January of 2001, a representative of Carstensen told them that Carstensen would pay J & M’s suppliers out of retainage held by Carsten-sen on J & M’s contract with Carstensen. Carstensen denies that any such promises were made. On February 20, 2001, J & M filed for Chapter 7 bankruptcy.

[¶ 7.] Under these circumstances, Mid-Dakota began to withhold from Carsten-sen’s unpaid compensation an amount Mid-Dakota deemed sufficient to pay claims presented by J & M’s suppliers. Carstensen brought suit to recover these withheld funds. Both sides moved for summary judgment on the question whether Carstensen is obliged to pay the unpaid claims of J & M’s suppliers for items used on or in connection with the project. The circuit court granted Carstensen’s motion for summary judgment and ordered Mid-Dakota to resume payment to Carstensen in accordance with the terms of the contract. Mid-Dakota appeals, raising the following issue: ‘Whether the trial court erred when it ruled that Carstensen is not liable for debts left unpaid by its subcontractor that subsequently filed for bankruptcy protection?”

Analysis and Decision

[18.] In interpreting a contract, we seek to ascertain and give effect to the intention of the parties; at the same time, to find the intention of the parties, we rely on the contract language they actually used. Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D.1985). In a case where, as here, several documents comprise the contract, all are to be read together to learn the parties’ intent. Dail v. Vodicka, 89 S.D. 600, 237 N.W.2d 7 (1975). It is a fundamental rule of contract interpretation that the entire contract and all its provisions must be given meaning if that can be accomplished consistently and reasonably. Id. at 603, 237 N.W.2d at 9. However, when provisions conflict and full weight cannot be given to each, “the more specific clauses are deemed to reflect the parties’ intentions — a specific provision controls a general one.” State v. Greger, 1997 SD 14, ¶ 21, 559 N.W.2d 854, 864. Ordinarily, the plain meaning of the contract language will be followed unless there is some ambiguity or different intent manifested. American State Bank v. Adkins, 458 N.W.2d 807, 809 (S.D.1990).

[¶ 9.] We examine the following provisions in the General Conditions deemed relevant by the circuit court:

§ 6.1: It is understood that, except as otherwise specifically stated in the contract documents, the contractor shall provide and pay for all materials, labor, tools, equipment, water, light, power, transportation, supervision, temporary construction of any nature, and all other services and facilities of any nature whatsoever to execute, complete, and deliver the work within the specified time....
§ 19.6: The CONTRACTOR [Carsten-sen] will indemnify and save the OWNER [Mid-Dakota] or the OWNER’S agents harmless from all claims growing out of the lawful demand of SUBCONTRACTORS, laborers, workmen, mechanics, materialmen, and furnisher of machinery and parts thereof, equipment, tools, and all supplies, incurred in the furtherance of the performance of the WORK. The CONTRACTOR shall, at the OWNER’S request, furnish satisfactory evidence that all obligations of the nature designated above have been paid, discharged, or waived. If the CONTRACTOR fails to do so, the OWNER may, after having notified the CONTRACTOR, either pay unpaid bills or withhold from the CONTRACTOR’S unpaid compensation a sum of money deemed reasonably sufficient to pay any and all such lawful claims until satisfactory evidence is furnished that all liabilities have fully discharged whereupon payment to the CONTRACTOR shall be resumed in accordance with the terms of the CONTRACT DOCUMENTS, but in no event shall the provisions of this sentence be construed to impose any obligation upon the OWNER to either the CONTRACTOR, the CONTRACTOR’S surety, or any third party. In paying any unpaid bills of the CONTRACTOR, any payments so made by the OWNER shall be considered as a payment made under the CONTRACT DOCUMENTS by the OWNER to the CONTRACTOR and the OWNER shall not be liable to the CONTRACTOR for any such payment made in good faith.
§ 26.3: The CONTRACTOR shall be fully responsible to the OWNER for the acts and omissions of its SUBCONTRACTORS, and of persons either directly or indirectly employed by them, as the CONTRACTOR is for the acts and omissions of persons directly employed by the CONTRACTOR.

[¶ 10.] Mid-Dakota points out that, in accord with § 6.1, the general contractor remains primarily responsible to the owner, even if certain work is subcontracted to third parties. See Brooks v. Hayes, 133 Wis.2d 228, 395 N.W.2d 167, 168 (1986). Carstensen argues (and the trial court agreed) that Mid-Dakota ignores the initial caveat in § 6.1: “except as otherwise specifically stated in the contract documents.” In particular, Carstensen highlights the word “lawful” in the initial sentence of § 19.6 (“The contractor will indemnify and save the owner or the owner’s agents harmless from ah claims growing out of the lawful demand of subcontractors ... materialmen, and furnisher[s] of machinery ..., equipment, tools, and all supplies ....”) and then argues that no lawful demands have been made, nor could be made, because the time for making claims against the surety or for filing mechanics’ liens has expired. As Carsten-sen sees the matter, Mid-Dakota is attempting to convert a moral obligation to pay J & M’s suppliers into a legal obligation. Carstensen contends that Mid-Dakota has no legal obligation to pay J & M’s suppliers, since Mid-Dakota is not in privity with them.

[¶ 11.] The trial court read the contract documents as indicating that only a subcontractor is authorized to assert the legal right (i.e., make the “lawful demand”) in question. This is contrary to the explicit language of § 19.6. Then, citing McLaughlin Elec. Supply v. American Empire Ins. Co., the court ruled that J & M’s suppliers were not privy to the contract between Carstensen and Mid-Dakota. 269 N.W.2d 766 (S.D.1978). The court reasoned that while the suppliers may have

lawful claims against the subcontractor!;,] their recourse against Carstensen and/or Mid-Dakota is limited to establishing a mechanic’s hen pursuant to SDCL 44-9 et. seq. However, a mechanic’s lien ceases “at the end of one hundred twenty days” unless there has been a hen filing under the provisions of SDCL 44-9-15. That was not done in this case. J & M has been paid all that it is due. J & M’s suppliers are stih owed money. Their only recourse is in bankruptcy court where the debt will either be paid, discharged, or compromised.

Accordingly, the court decided that Mid-Dakota could not withhold payments because of these claims.

[¶ 12.] We note in passing that the stipulated facts, upon which alone a decision on a motion for summary judgment is to be reached in this case, do not support some of the trial court’s findings. It is not a stipulated fact that J & M did not perform any work on the project after November 2, 2000; it is a disputed fact. It is not a stipulated fact that J & M was paid ah sums due it under the contract; that finding was based solely on the representation of Carstensen’s attorney.

[¶ 13.] More important, however, is the trial court’s misreading of the contract language. Under the General Conditions of the contract, Carstensen is not obligated simply to pay its subcontractors. ■ In accord with § 6.1, Carstensen’s obligation to the owner is to “pay for all materials, labor, tools,' equipment, water, light, power, transportation, supervision, temporary construction of any nature” in connection with the project work. The indemnification provisions in § 19.6 add to Carsten-sen’s obligation to pay under § 6.1 to the extent that claims by providers must be “lawful.” Nothing in the contract documents, however, gives support for the view that all claims of suppliers and others had to have been converted into perfected mechanics’ liens in order to be “lawful.” While it is true that no mechanic’s liens were filed within the statutorily prescribed time period, and therefore no demand for payment based on a lien can be lawful, it is certainly possible that J & M’s suppliers could make other claims against Mid-Dakota on another lawful basis.

[¶ 14.] South Dakota case law gives second-tier suppliers and laborers a potential right of action against Carsten-sen and Mid-Dakota on the theory that they are third party beneficiaries of the construction contract. Under that theory, privity is not required between the second-tier suppliers and laborers and Mid-Dakota if the contract “expressly” provides for their “benefit.” SDCL 53-2-6; Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, ¶ 13, 632 N.W.2d 856, 858. This Court has previously held that contract language like that found in § 6.1 is expressly made for the benefit of second-tier suppliers and laborers. Evans and Howard Fire Brick Co. v. National Surety Co., 42 S.D. 109, 173 N.W. 448, 452 (1919). Since such third-party claims could be brought and still be viable, Carstensen perforce cannot “furnish satisfactory evidence that all [lawful] obligations ... have been paid, discharged, or waived.” It follows that, according to the terms of the contract, Mid-Dakota may withhold payment to Carsten-sen until the outstanding claims of J & M’s suppliers have in fact been paid, discharged, or waived.

[¶ 15.] Reversed.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, and ZINTER, Justices, and AMUNDSON, Retired Justice, concur.

      . Mid-Dakota argues that the payment bond, being part of the contract documents, is a relevant document for consideration. We need not reach that question because the com-struction contract provisions squarely resolve the issue before us. The record does not reflect whether any claim has been made against the surety.

      . As the evidence presented to the trial court consisted of contract documents and stipulated facts, we confine our review to determining whether the circuit court correctly applied the law and properly interpreted the contracts. Economic Aero Club, Inc. v. Avem-co Ins. Co., 540 N.W.2d 644, 645 (S.D. 1995).

      . The “work” is defined as all labor, materials, and equipment necessary to construct the project.

      .As Carstensen’s counsel stated in the summary judgment hearing, "no one is going to deny in this room that perhaps there is a moral responsibility for Carstensen and Mid- - Dakota both to pay these debts ... [of] these folks that are in our area here in Miller....” And Carstensen’s brief affirms that "[i]f the suppliers had filed a timely lien upon Carsten-sen, Mid-Dakota, or the Project, they would have probably been paid.”

      . A "lawful demand” is "the assertion of a legal right” by "an authorized person.” Black’s Law Dictionary, 441 (7th ed 1999).

      . The contractor "will indemnify and save the owner ... harmless from ... the lawful demand of subcontractors, laborers, workmen, mechanics, materialmen, and furnisher of machinery and parts thereof, equipment, tools, and all supplies, incurred in the furtherance of the performance of the work.”

      . Although Evans involved-an action against a surety rather than a general contractor, the same contractual language was involved and the same analysis was used. Under Evans, as long as the contract between the owner and the contractor contains a provision like § 6.1, which obligates the contractor to "pay for all materials, labor, [etc.] ... of any nature” used in connection with the work, second-tier laborers and suppliers may enforce the contract as third party beneficiaries. 173 N.W. at 452.

      . It may be true, as Carstensen asserts, that some of the costs claimed by J & M’s suppliers as reimbursable were not legitimately incurred. Disagreements over these matters are properly the subject of further resolution among Mid-Dakota, Carstensen, and the suppliers. We are not giving the suppliers carte blanche to obtain whatever they demand. As the attorney for Mid-Dakota argued before the circuit court, it was Carstensen's duty under § 6.1 to pay for "anything [supplies, labor, etc.] that was incorporated in the project.”


author:
VON WALD, Circuit Judge.
      AMUNDSON, Retired Justice

text:
    2002 SD 137
    ST. LUKE’S MIDLAND REGIONAL MEDICAL CENTER, n/k/a Avera St. Luke’s and Presentation Sisters Workers’ Compensation Trust, Employer, Insurer and Appellees, v. Maty Beth KENNEDY, Claimant and Appellant.
    Nos. 22223, 22224.
    Supreme Court of South Dakota.
    Argued May 29, 2002.
    Decided Nov. 13, 2002.

      Michael S. McKnight and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield. Sioux Falls, South Dakota, Attorneys for employer, insurer and appel-lees.
    J.G. Shultz of Woods, Fuller, Shultz, & Smith. Sioux Falls, South Dakota, Attorneys for claimant and appellant.
   VON WALD, Circuit Judge.

[¶ 1.] Mary Beth Kennedy (Kennedy) appeals a circuit court judgment reversing an award of workers’ compensation benefits to Kennedy by the South Dakota Department of Labor (DOL). Avera St. Luke’s Midland Regional Medical Center (St.Luke’s) has filed a notice of review. We reverse.

FACTS

[¶ 2.] At the time Kennedy initiated workers’ compensation proceedings, she was employed as a nurse with Falls Memorial Hospital in International Falls, Minnesota. This case stems from a Minnesota workers’ compensation hearing in which she was denied benefits because her inability to work was directly caused by an injury that occurred while she was employed by St. Luke’s in Aberdeen.

[¶ 3.] Kennedy has a history of allergic reactions to pollens and animal danders and a history of childhood eczema and various food allergies. She was first diagnosed with a latex allergy in August 1994 while employed at St. Luke’s. After the diagnosis, her treating physician informed Kennedy that she should avoid contact with all latex products. The physician wrote a letter to St. Luke’s advising that Kennedy had a severe latex allergy and should avoid all contact with latex products. St. Luke’s responded by giving Kennedy non-latex gloves. Kennedy was unaware of the severity of her allergy or that latex particles may become airborne.

[¶ 4.] Although employed by St. Luke’s as a nurse, Kennedy had no allergic reactions to latex between August 1994 and July 8, 1996. On July 8, during an obstetric emergency c-section, Kennedy pulled a latex glove over her non-latex glove to avoid blood contact. While opening the latex gloves, Kennedy came into contact with a large amount of airborne latex dust particles that were partially caused by the powder that the manufacturers used inside the gloves. Shortly after taking the e-section baby out of the delivery room, Kennedy suffered an acute anaphylactic reaction, and required emergency medical attention. This was her first anaphylactic reaction from her latex allergy. St. Luke’s paid the related medical bills and workers’ compensation claims and the file was closed on November 5,1996.

[¶ 5.] In late 1996, Kennedy moved to International Falls, Minnesota with her family. Her employer, Falls Hospital, was aware of her allergy to latex. Kennedy next suffered allergic reactions on January 22, 1997 and March 21, 1997 followed closely by another on March 31, 1997. The January reaction occurred at her home and the two reactions in March occurred at International Falls Hospital. Kennedy has not returned to work since her last reaction in March 1997. After these reactions, she sought the advice» of allergists who instructed her to stay away from aerosolized latex and to remain in a latex-free environment. They further advised that these reactions are so life-threatening that she should stay within driving distance of emergency medical facilities.

[¶ 6.] It was after these episodes that Kennedy pursued a workers’ compensation claim in Minnesota. The claim was denied. Expert testimony from the Minnesota hearings on Kennedy’s claim placed the cause of her severe allergic reactions on an initial injury. According to all of the experts, the “point of no return,” or injury, occurred at the time of Kennedy’s first anaphylactic reaction in July 1996 at St. Luke’s. At that point, her reactivity threshold was permanently lowered meaning that a smaller dose of latex will produce a response. It was after the denial of her claim by the Minnesota Workers’ Compensation Board that Kennedy decided to make a claim against St. Luke’s for permanent and total disability benefits based upon the injury in July 1996.

[¶ 7.] Kennedy’s workers’ compensation case against St. Luke’s was brought before DOL. A hearing was held on December 22, 1999. DOL issued a decision on June 6, 2000 and findings of fact and conclusions of law on June 30, 2000. DOL awarded Kennedy permanent total disability benefits under SDCL 62-1-1(7). St. Luke’s appealed that decision to the circuit court. A ruling was issued on October 19, 2001. It affirmed the fact that Kennedy’s condition was an occupational disease, however it reversed DOL by ruling that the disease was not caused by an injury. It also reversed DOL’s decision by ruling that the specific notice statutes in SDCL 62-8-29 and 13 applied over the general notice statutes in 62-7-10, thereby precluding the award of workers’ compensation to Kennedy. Kennedy appeals that decision. St. Luke’s raises two issues by notice of review.

STANDARD OF REVIEW

[¶ 8.] Our standard of review in workers’ compensation cases is well settled.

In workers’ compensation cases, this Court gives great weight to the findings and inferences made by DOL on factual questions. Wagaman v. Sioux Falls Const., 1998 SD 27, ¶12, 576 N.W.2d 237, 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225). “Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.” Id. (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766). When reviewing agency findings, we “will reverse, only if, after careful review of the entire record, we are definitely and firmly convinced a mistake has been made.” Id. (citation omitted).

Gordon v. St. Mary’s Healthcare Center, 2000 SD 130, ¶ 16, 617 N.W.2d 151, 156.

ISSUE ONE

[¶ 9.] Was Kennedy’s allergic reaction on July 8, 1996 a compensable injury under SDCL 62-1-K7)?

[¶ 10.] Determining whether an allergic reaction is a compensable injury is a matter of first impression for this Court. DOL concluded that Kennedy suffered a compensable injury under SDCL 62-1-l(7)(b), holding that she had preexisting allergies which, when combined with latex at work, produced anaphylactic shock and the consequences thereof. DOL decided that this disability was ongoing and was the major cause of Kennedy’s present inability to work. As a matter of law, the circuit court reversed DOL’s ruling by holding that Kennedy had an occupational disease for which she failed to properly give notice and that she could not recover workers’ compensation benefits.

[¶ 11.] The allergists who testified agreed that the July 1996 exposure was the “point of no return” for Kennedy and that this exposure was the major contributing cause of her disability. Since that point, any exposure to latex is now a major life or death situation for Kennedy. Is this reaction an injury in South Dakota? Claimant compares this injury to back injuries or heart disease where the cause cannot be linked to one occasion, but a series of occasions leading up to the disabling injury. South Dakota has a history of awarding compensation to claimants, even though they cannot prove any specific trauma, if they prove a history of injury to the body that occurs in the normal course of employment. See e.g. Caldwell v. John Morrell & Co., 489 N.W.2d 353 (S.D.1992) (man compensated for back condition without a specific work incident); Sudrla v. Commercial Asphalt & Materials, 465 N.W.2d 620 (S.D.1991). In Kiman v. Dakota Midland Hosp., 331 N.W.2d 72 (S.D.1983), this Court compensated a man who suffered a heart attack at work. See also Westergren v. Baptist Hosp. of Winner, 1996 SD 69, 549 N.W.2d 390 (carpal tunnel syndrome).

[¶ 12.] This Court may also look to other state courts for guidance on the issue of classifying an allergic reaction as an injury. Recently, in St. Luke’s Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000), the Iowa Supreme Court ruled that a nurse suffering from a latex allergy was entitled to coverage for a work-related injury rather than an occupational disease. Id. at 650.

In that case, the claimant was faced with increased symptomology associated with latex in the workplace. Her doctors advised that she was permanently partially disabled because her workplace could not be made latex-free.

[¶ 13.] Although Kennedy was predisposed to her allergy and was, no doubt, suffering from the disease of latex allergy, an injury may occur when a preexisting disease makes an employee more susceptible to a work-related injury. As this Court stated in Elmstrand v. G. & G. Rug & Furniture Company, 77 S.D. 152, 155, 87 N.W.2d 606, 608 (1958):

In so far as the pre-existing condition is concerned we must take the employee as we find him. If a compensable event contributed to the final disability, recovery may not be denied because of the pre-existing condition, even though such condition was the immediate cause of the disability.

Again, in Hendrix v. Graham Tire Co., 520 N.W.2d 876, 879 (S.D.1994), this Court determined that preexisting conditions are not an automatic disqualification for workers’ compensation. However, an injury is always a question of fact to be determined by the Department based upon evidence and testimony.

A pre-existing medical condition or infirmity does not disqualify a claim under the “arising out of employment” requirement if the employment aggravated, accelerated, or combined with the condition or infirmity to produce the disability for which compensation is sought. Guthmiller v. Dept. of Transportation, 502 N.W.2d 586, 590 (S.D.1993) (Sabers, J., dissenting) (citing 1 Larson, Workmen’s Comp. § 12.25.) “ ‘Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by [Department] based on any medical testimony ... will not be disturbed on appeal.’ ” Id.

Hendrix, 520 N.W.2d at 879.

[¶ 14.] DOL made a factual ruling that Kennedy’s significant allergic reaction of July 1996 was a compensable injury under SDCL 62-1-1(7) causing all subsequent anaphylactic reactions to latex. This decision was legally sound and based on solid medical evidence. DOL’s ruling is not clearly erroneous and will not be disturbed.

ISSUE TWO

[¶ 15.] Is Kennedy’s allergy an Occupational Disease as defined by SDCL ch 62-8?

[¶ 16.] DOL found that Kennedy’s allergy might indeed be an occupational disease because latex allergy is more prevalent in the medical industry. Being diagnosed with this condition would decrease the chances of finding employment in the medical field. However, based upon the medical experts, Kennedy’s allergy was not life threatening and could have been controlled up until July 1996. At that time, Kennedy’s exposure to latex at St Luke’s was so great that she can no longer be exposed to latex products. The experts diagnosed this condition as irreversible. At the time of injury, Kennedy was unaware of the dangers of this illness.

[¶ 17.] This Court will not second-guess the factual findings of DOL unless they are clearly erroneous. Gordon, supra. In this case, DOL found that the allergic reaction in 1996 was more closely recognized as a workplace injury rather than an injury due to an occupational disease. The allergy at the time of injury became an occupational disease, but on July 8, 1996, was still just a condition that was aggravated by events at the workplace. The findings of DOL are not clearly erroneous and this injury is not barred because of the occupational disease statutes, SDCL ch 62-8.

ISSUE THREE

[¶ 18.] Does Kennedy’s subsequent exposure at the Minnesota hospital bar her claim against St. Luke’s?

[¶ 19.] The last issue we address is St. Luke’s question in its notice of review. The answer is predicated on South Dakota’s last injurious exposure rule. South Dakota has adopted this rule when dealing with successive injuries. Under the rule, “ ‘[w]hen a disability develops gradually, or when it comes as a result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.’ ” Enger v. FMC, 1997 SD 70, ¶ 12, 565 N.W.2d 79, 83 (quoting Schuck v. John Morrell & Co., 529 N.W.2d 894, 900 (S.D.1995)) (citing Novak v. C.J. Grossenburg & Son, 89 S.D. 308, 311, 232 N.W.2d 463, 464-65 (1975)).

[¶ 20.] In the recent case of Truck Ins. Exchange v. CNA, 2001 SD 46, ¶¶ 17-18, 624 N.W.2d 705. 624 N.W.2d 705, 709, we reiterated the criteria for determining whether the last known injury is a successive injury or a recurrence of the original injury:

The application of the last injurious exposure rule to a particular claim is based on a factual determination: whether the successive injury is a mere recurrence or an independent aggravation of the first injury.
In successive injury cases, the original employer/insurer remains liable if the second injury is a mere recurrence of the first. If the second injury is an aggravation that contributes independently to the final disability then the subsequent employer/insurer is liable.
Schuck, 529 N.W.2d at 900.
The distinction between the meaning of these two concepts is gray. Enger v. EMC, 1997 SD 70, ¶ 17, 565 N.W.2d 79, 84. “ ‘If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second.’” Id. (quoting 9 Arthur Larson, Larson’s Workmen’s Compensation Law § 95.23.)

[¶ 21.] In this case, Kennedy was unaware after the first injury that she would be prone to more allergic reactions. Medical testimony indicated that the cause of the subsequent reactions in Minnesota was directly linked to the reaction at St. Luke’s. To make such a determination, this court has set out guidelines:

To determine that an injury was an aggravation of a prior episode, the evidence must show: 1) a second injury as that term is used in this jurisdiction; and 2) that this second injury contributed independently to the final disability. Paulson v. Black Hills Packing Co., 1996 SD 118, ¶ 12, 554 N.W.2d 194, 196. To determine that the second episode was a recurrence of the prior injury the evidence must show: 1) there have been persistent symptoms of the injury; and 2) no specific incident that can independently explain the second onset of symptoms. Id. Because an injury is a subjective condition, an expert opinion is required to establish a causal connection between the incident or injury and disability. Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992).

Track Ins. Exchange, 2001 SD 46 at ¶ 20, 624 N.W.2d at 709.

[¶ 22.] According to the guidelines set by this Court, DOL was not clearly erroneous in its factual determination that the reactions in the Minnesota Hospital did not contribute independently to the final disability suffered by Kennedy. Instead, these reactions were caused by the injury at St. Luke’s and were recurrences. “In successive injury cases, the original employer/insurer remains liable if the second injury is a mere recurrence of the first.” Schuck, 529 N.W.2d at 900.

CONCLUSION

[¶ 23.] Because this case essentially turns on a factual determination, DOL’s ruling will stand unless clearly erroneous. Nothing in the record indicates that is the case. Therefore, the findings and conclusions of DOL are affirmed and the judgment of the circuit court is reversed.

[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and MILLER, Retired Justice, concur.

[¶ 25.] AMUNDSON, Retired Justice, dissents.

[¶26.] VON WALD, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 27.] MILLER, Retired Justice for ZINTER, Justice, disqualified.

AMUNDSON, Retired Justice

(dissenting).

[¶ 28.] In administrative appeals, we have held that in order for there to be a meaningful appellate review where the trial court has reversed the administrative agency’s decision, Findings of Fact and Conclusions of Law must be entered by the trial court. Schroeder v. Dep’t of Soc. Serv., 529 N.W.2d 589, 591 (S.D.1995).

[¶ 29.] A review of this record reveals a circuit court Order signed Nov. 13, 2001, which states that the circuit court has entered its Findings of Fact and Conclusions of Law setting forth its rationale for reversal of the Department’s Findings of Fact and Conclusions of Law signed June 30, 2000. The record does not contain the Findings of Fact and Conclusions of Law as mentioned in the circuit court’s Order.

[¶ 30.] In order for this meaningful appellate review, the circuit court’s Findings of Fact and Conclusions of Law must be in the record before we can render our decision. Therefore, I would remand this case so that the circuit court’s Findings of Fact and Conclusions of Law can be incorporated into the record. In the event no Findings of Fact and Conclusions of Law have been prepared it is necessary that such be completed so that this meaningful review may be made by this Court.

      . "[A]naphylactic shock. ' A sudden, severe and sometimes fatal allergic reaction marked by a sharp drop in blood pressure, urticaria, and breathing difficulties caused by exposure to a foreign substance [allergen] after a preliminary exposure.” The American Heritage College Dictionary, 48 (3d ed 1997).

      . SDCL 62-1-1(7) provides:
      (7) "Injury” or "personal injury,” only injury arising out of and in the course of the employment, and does not include a disease in any form except as it results from the injury. An injury is compensable only if it is established by medical evidence, subject to the following conditions:
      (a) No injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of; or
      (b) If the injury combines with a preexisting disease or condition to cause or prolong disability, impairment, or need for treatment, the condition complained of is com-pensable if the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment.
      (c)If the injury combines with a preexisting work related compensable injury, disability, or impairment, the subsequent injury is compensable if the subsequent employment or subsequent employment related activities contributed independently to the disability, impairment, or need for treatment.

      . In Sudrla, this Court observed:
      South Dakota law further requires a showing that employment be a contributing factor in the injuty suffered. It must be established that the [injury] was brought on by strain or overexertion incident to the employment, though the exertion or strain need not be unusual or other than that occurring in the normal course of employment. Kiman v. Dakota Midland Hosp., 331 N.W.2d 72, 74 (S.D.1983); 1A Larson, The Law of Workmen's Compensation, Sec. 12.26, at 3-348.71 (1985); Harden v. S.D. Credit Union League, Inc., 87 S.D. 433, 209 N.W.2d 665 (1973); Oviatt v. Oviatt Dairy Inc., 80 S.D. 83, 119 N.W.2d 649 (1963).

        Sudrla, 465 N.W.2d at 621 (emphasis original).

      . Studies reveal that 6% to 17% of the healthcare workforce suffers from latex allergy.


author: /s/ Kathleen A. Blatz Chief Justice

text:
    In re LaSALLE BANK/TWIN CITIES AVANTI STORES LITIGATION.
    No. C0-02-1870.
    Supreme Court of Minnesota.
    Nov. 15, 2002.
   ORDER

LaSalle Bank, National Association, as Loan Pool Trustee, through its loan servi-cer, GMAC Commercial Mortgage Corporation (movant), has moved under Minn. R. Gen. Prac. 113.03 for assignment to a single judge of 17 mortgage foreclosure actions it filed against defendants Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc. in 6 different judicial districts in Minnesota. Movant requests that these 17 actions (listed in the attached addendum) be consolidated because all of the actions involve common questions of law and fact and arise out of the same transactions. All 17 cases involve the same parties. Defendants do not oppose the motion.

The undersigned concludes, without expressing any opinion on the issue of consolidation, that these actions involve common questions of law and fact. The interests of the parties and the judiciary will be furthered by a uniform and coordinated system of litigation management to eliminate duplicative discovery, prevent inconsistent pretrial rulings and conserve the resources of the parties, their counsel and the judiciary, and the cases are therefore assigned to a single judge. The undersigned also concludes that the convenience of witnesses and the ends of justice would be promoted by having all 17 actions venued in the same court. See Minn.Stat. § 542.11(4) (2002). Therefore, all cases will be ven-ued in a single,county. Any decision regarding formal consolidation of any or all of the cases for trial or other purposes is left to the discretion of the presiding judge.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that (1) pursuant to Minn. R. Gen. Prac. 113.03, the Honorable Pamela Alexander of the Fourth Judicial District, having consented, is appointed to hear and decide all matters, including pretrial and trial proceedings, in the 17 cases listed in the attached addendum, and (2) pursuant to Minn.Stat. § 542.11(4), the venue in the 16 cases not currently venued in Hennepin County is changed to Hennepin County. To facilitate the identification and management of these cases, all documents served and filed from the date of this order shall, in addition to the individual case caption, bear the general case caption “In Re: LaSalle Bank/Twin Cities Avanti Stores Litigation.”

BY THE COURT:

/s/ Kathleen A. Blatz Chief Justice

ATTACHMENT

ADDENDUM

Pending Cases:

LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc.; and Twin Cities Stores, Inc.
No. C9-02-2197, Blue Earth County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No. C3-02-10457, Dakota County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No. 02-17417, Hennepin County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No. 62-C9-029932, Ramsey County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Brown County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores,. LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Wabasha County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Steele County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Goodhue County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Freeborn County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Tivin Cities Stores, Inc.
No_, Dodge County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Carver County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Waseca County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Scott County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Olmsted County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Rice County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Anoka County
LaSalle Bank, National Association, f/k/a LaSalle National Bank, as Loan Pool Trustee, by and through GMAC Commercial Mortgage Corporation, as Loan Servicer v. Twin Cities Avanti Stores, LLC, Roundtree Markets, Inc., and Twin Cities Stores, Inc.
No_, Nicollet County