author: GILBERTSON, Justice

text:
    2001 SD 107
    H & W CONTRACTING, LLC, and Jamie Frentz, a Taxpayer and Elector of the City of Watertown, Petitioners and Appellants, v. CITY OF WATERTOWN, Municipal Corporation, Defendant and Appellee, and Pipestone Concrete, Inc., Intervenor and Appellee.
    Nos. 21654, 21671, 21675.
    Supreme Court of South Dakota.
    Argued May 31, 2001.
    Decided Aug. 15, 2001.

      Thomas J. Welk of Boyce, Murphy, McDowell & Greenfield, Matthew McCaul-ley of Hynes & McCaulley, LLC, Sioux Falls, for petitioners and appellants.
    Roy A. Wise of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, for appel-lee City of Watertown.
    Mark E. Salter of Cutler, Donahoe <& Mickelson, Sioux Falls, for appellee Pipe-stone Concrete.
   GILBERTSON, Justice

[¶ 1.] The City of Watertown (City) advertised for bids on a project to replace a portion of its storm sewer. The lowest bidder was Pipestone Concrete, Inc. (Pipe-stone). H & W Contracting, LLC (H & W) was the next lowest bidder. After the contract was awarded to Pipestone, H & W sued City claiming it should have been awarded the contract because of irregularities in Pipestone’s bid. The circuit court granted summary judgment in favor of City. We affirm.

FACTS AND PROCEDURE

,[¶2.] On March 23, 2000, City issued an invitation for bids on a project involving the replacement of a major lift station and a portion of the storm sewer. As part of this process, City hired Allen Erickson, of HDR Engineering, to prepare documents associated with the project as well as review and recommend bids. When preparing bids, each contractor was required to complete a detailed bid sheet, which listed separate prices for various items of work to be performed. For most items, the contractors were required to list a “unit bid price” and an “amount bid,” which was the unit bid price multiplied by the number of units to be used. Several items, however, required the contractors to only list a “lump-sum” or total price. City received five bids on the project, which were opened on April 13, 2000. Pipestone’s bid was $1,863,430.00. The next lowest bid was from H & W, for $1,907,129.65.

[¶ 3.] As part of his responsibility to City, Erickson prepared a “bid tabulation” for each individual bid. A “bid tabulation” checks a bid for errors by using a spreadsheet to compare the number of units and unit bid price for each item comprising the bid. The totals using this comparison were then compared with the total bid amount. When this process was performed on Pipestone’s bid, two discrepancies were found. On item 39, which involved amounts allocated to traffic control devices, Pipestone had inserted $11,000 in the column marked “unit bid price.” It had then carried that number across to the “amount bid” column. When the bid tabulation multiplied the quantity of traffic control devices (5,088) by the $11,000 figure listed as the unit bid price, the total bid amount for the entire project would have increased to $57,820,438.00, or thirty-one times the total indicated on the actual bid. The bid tabulation also indicated a minor error on line 69.

[¶ 4.] On April 17, 2000, Erickson informed Pipestone of the errors in its bid. At that time, Pipestone faxed Erickson a quote from Pipestone’s subcontractor for that item. The bid from the subcontractor for item 39 was $10,176 and was dated prior to the bid opening. That figure had been rounded up to $11,000 to account for damage incurred throughout the project. Instead of subdividing the price per unit, Pipestone had entered the total price on the bid sheet. Figuring backward from $11,000, the unit price was $2.16. The unit price of the other four bidders on this item ranged from $2.00 to $3.00. Pipestone also agreed to correct the error on line 69. After these errors were corrected, Erickson created a new bid tabulation. The new bid tabulation totaled Pipestone’s bid at $1,863,438.00, an increase of $8.

[¶ 5.] Erickson explained the discrepancies to Larry Little, City’s Public Works Director. Little agreed with Erickson’s assessment that the $11,000 unit bid price was intended to be the amount bid and any other interpretation would be “ridiculous.” Little recommended the Pipestone bid to the city council, which accepted the bid. The city council forwarded a contract to Pipestone, which was signed on May 18, 2000.

[¶ 6.] On May 10, 2000, H & W filed an application for peremptory writs of prohibition and mandamus. In its application, H & W requested that the circuit court prohibit City from awarding the contract to Pipestone and direct City to award the contract to H & W. H & W’s application was later amended to add a request for declaratory relief. At a hearing on May 19, 2000, Pipestone was allowed to intervene. In addition, Jamie Frentz was joined as a petitioner, based on his standing as a taxpayer and citizen of Water-town. The circuit court ruled that H & W lacked standing, as a disappointed bidder, to challenge the award of the contract. It denied the writs of prohibition and mandamus because Frentz had an adequate legal remedy, namely the declaratory relief that he sought. The parties then moved for summary judgment on Frentz’ request for declaratory relief. The circuit court found Pipestone’s bid contained two obvious clerical errors, and that the errors had not provided any competitive advantage over other bidders. The circuit court decided that the legislative intent of the competitive bidding laws had not been violated by the correction of such errors. Therefore, it granted summary judgment in favor of City. H & W and Frentz appeal, raising three issues:

1. Whether H & W, as a disappointed bidder, has standing to challenge an alleged violation of South Dakota’s competitive bidding laws.
2. Whether a municipality may correct a clerical error on a bid for a public contract.
3. Whether H & W and/or Frentz were entitled to writs of mandamus and prohibition requiring City to award the contract to H & W.

STANDARD OF REVIEW

[¶ 7.] Our standard of review on a circuit court’s grant of summary judgment is well settled, “we will affirm only if all legal questions have been decided correctly and there are no genuine issues of material fact.” Estate of Juhrike v. Marquardt, 2001 SD 26, ¶ 5, 623 N.W.2d 731, 732 (citations omitted). The parties have agreed that no issues of material fact exist. Therefore, we need only determine whether the circuit court correctly applied the law. Id.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether H & W, as a disappointed bidder, has standing to challenge an alleged violation of South Dakota’s competitive bidding laws.

[¶ 9.] Whether a party has standing is a legal conclusion, which we review under the de novo standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25; Kankakee County Bd. of Review v. Property Tax Appeal Bd., 316 Ill.App.3d 148, 249 Ill.Dec. 186, 735 N.E.2d 1011, 1014 (2000). In general, a party establishes standing by showing “that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Agar School Dist. No. 58-1 v. McGee, 527 N.W.2d 282, 284 (S.D.1995) (quoting Parsons v. South Dakota Lottery Comm’n, 504 N.W.2d 593, 595 (S.D.1993)). Therefore, to have standing, H & W must show some actual or threatened injury caused by City’s actions.

[¶ 10.] H & W claims, in light of the errors on Pipestone’s bid, it was the lowest responsible bidder and is therefore legally entitled to the contract. In Tri-State Milling Co. v. Board of County Com’rs, 75 S.D. 466, 68 N.W.2d 104 (1955), this Court addressed a similar situation. In that case, the lowest bidder sued the County when he was not awarded the contract. In deciding whether the lowest bidder was an “aggrieved person” under the statute, we stated, “[t]he requirement that contracts shall be let to the lowest responsible bidder is intended for the protection of the public rather than that of the bidders. No legally enforceable right vested in the appellant merely because it was ostensibly the lowest bidder.” Id. at 468, 68 N.W.2d at 105. This holding recognizes that City’s advertisement for bids merely invites offers. The bids submitted by contractors are offers to contract. Even the lowest responsible bid on a public contract does not give rise to any private right of enforcement until it has been accepted. See SDCL 5-18-2, -3 (giving a city “the right to reject any and all bids.”); La Mar Constr. Co. v. Holt County, 542 S.W.2d 568, 569-70 (Mo.Ct.App.1976); 10 McQuillin, Municipal Corporations § 29.77 (3rd Ed. Rev.). Like Tri-State Milling Co., H & W holds no entitlement to the contract, even if it were the low bidder, and therefore can show no actual or threatened injury as a result of City’s actions.

[¶ 11.] However, “a taxpayer need not ... suffer special injury to himself to entitle him to institute an action to protect public rights.” Agar School Dist., 527 N.W.2d at 284. H & W is organized as a limited liability company under the laws of Minnesota and has its principal place of business in Sioux Falls. Therefore, H & W does not have standing as a Watertown taxpayer.

[¶ 12.] Despite this general rule, a large number of jurisdictions have adopted an exception, which allows disappointed bidders to challenge the award of a public contract, acting as private attorneys general on behalf of the public. Standing has been bestowed in cases of “fraud, corruption or acts undermining the objective and integrity of the bidding process.” Connecticut Associated Builders and Contractors v. City of Hartford, 251 Conn. 169, 740 A.2d 813, 821 (1999) (“CABC”); Metro. Air Research Testing Auth., Inc. v. Metro. Gov’t of Nashville, 842 S.W.2d 611, 617 (Tenn.Ct.App.1992) (“MARTA”); Walt Bennett Ford, Inc. v. Pulaski County Special School Dist., 274 Ark. 208, 624 S.W.2d 426, 428 (1981); Aqua-Tech, Inc. v. Como Lake Protection and Rehabilitation Dist., 71 Wis.2d 541, 239 N.W.2d 25, 31 (1976); Trap Rock Ind., Inc. v. Kohl, 59 N.J. 471, 284 A.2d 161, 165 (N.J.1971). These courts have recognized that while, in theory, a taxpayer could challenge the governing body’s actions; in reality, few taxpayers are willing to shoulder the time and expense necessary to pursue such an action. See State ex rel. E.D.S. Federal Corp. v. Ginsberg, 163 W.Va. 647, 259 S.E.2d 618, 623-24 (1979); Aqua Tech, 239 N.W.2d at 31. On the other hand, a disappointed bidder is intimately involved in the bid-letting process, will be familiar with any irregularities, and can be expected to protect its interests. Id. A disappointed bidder is more likely, and more able, to challenge a bid-letting process that violates the competitive bidding laws, and thereby protect not only its own rights, but also those of the public. MARTA, 842 S.W.2d at 617; Walt Bennett Ford, 624 S.W.2d at 428. We are persuaded by this reasoning and hereby adopt a limited exception to the rule announced in Tri-State. When the bidding process has been undermined by “favoritism, improvidence, extravagance, fraud [or] corruption,” disappointed bidders have standing to sue on behalf of the public’s interest. See Fonder v. Sioux Falls, 76 S.D. 31, 34, 71 N.W.2d 618, 620 (1955).

[¶ 13.] We are mindful of the increased burden this exception could place on governmental agencies forced to defend lawsuits brought by disappointed bidders. Therefore, before a disappointed bidder will be granted standing, it must establish the existence of “favoritism, improvidence, extravagance, fraud [or] corruption.” Fonder, 76 S.D. at 34, 71 N.W.2d at 620. See also CABC, 740 A.2d at 821. This burden does not require the bidder to prove the merits of its case. However, the disappointed bidder must at least establish, at a pre-trial evidentiary hearing, a colorable claim, or prima facie case, of such activity before it will be allowed to proceed with its claim. Id. at 822.

[¶ 14.] H & W’s petition sought equitable relief in the form of writs of prohibition and mandamus, as well as declaratory relief requiring City to award the contract to H & W. Under the limited exception herein adopted, the relief sought by disappointed bidders must be limited to such requests. Because a disappointed bidder’s standing is based on the protection of public interests, it extends only to suits for declaratory or equitable relief seeking to compel compliance with the competitive bid laws. MARTA, 842 S.W.2d at 617; Stride Contracting Corp. v. City of Yonkers, 181 A.D.2d 876, 581 N.Y.S.2d 446, 448 (1992); Conway Corp. v. Construction Engineers, Inc., 300 Ark. 225, 782 S.W.2d 36, 41 (1989). Such suits protect the public from excessive contracts and increased tax burden. Dick Enterprises, Inc. v. Metropolitan/King County, 88 Wash.App. 566, 922 P.2d 184, 186 (1996). However, suits by disappointed bidders seeking damages perform no such legitimate public service. In fact, “[t]o allow damages would violate the public interest by subjecting taxpayers to further penalties when they are already injured by paying too high a price under an illegal contract.” Id. Therefore, disappointed bidder standing does not extend to suits seeking to recover damages, such as lost profits and bid preparation costs. Id.; Becker Electric Inc. v. City of Bismarck, 469 N.W.2d 159, 162 (N.D.1991); Sutter Brothers Constr. Co. v. City of Leavenworth, 238 Kan. 85, 708 P.2d 190, 196 (1985); Gulf Oil Corp. v. Clark County, 94 Nev. 116, 575 P.2d 1332, 1334 (1978).

[¶ 15.] H & W fails to fall into this limited standing exception. While it has made veiled accusations of fraud and corruption by City and Pipestone, it has produced no such evidence. Therefore, it does not have standing to protect the public’s interest. In reality H & W seeks an award of the bid which would cost the taxpayers of Watertown an additional $43,699.55, while granting them no additional contractual benefits.

[¶ 16.] 2. Whether a municipality may correct a clerical error on a bid for a public contract.

[¶ 17.] Resolution of this issue involves statutory interpretation, which is a question of law, reviewed under the de novo standard. Maryott v. First Nat’l Bank of Eden, 2001 SD 43, ¶ 17, 624 N.W.2d 96, 102. Frentz claims Pipestone was allowed to modify its bid in violation of the competitive bidding laws. To make this claim, Frentz relies upon the following language in § 17.1 of the bid specifications: “[discrepancies between the multiplication of units of Work and unit prices will be resolved in favor of the unit prices.” According to that language, Frentz argues the unit price of $11,000 controls over the figure in the amount bid column. Under that reasoning, Pipestone’s amount bid for traffic control would be $55,968,000 and the total bid would be $57,820,438.00. When Pipestone was allowed to correct that error, its bid was allegedly modified in violation of SDCL 5-18-8. That statute allows for the modification of bids before the bids have been opened, and expressly disallows modifications over the telephone. According to Petitioners, Pipestone was allowed to modify its bid after the bids had been opened, and allowed to do so tele-phonically, all in violation of SDCL 5-18-8.

[¶ 18.] While we do strictly enforce South Dakota’s competitive bidding laws, we do so to protect the public treasury against “favoritism, improvidence, extravagance, fraud and corruption.” Fonder, 76 S.D. at 34, 71 N.W.2d at 620. With that principle in mind, we cannot agree with the assertion by Frentz that the bid was modified. Therefore, SDCL 5-18-8 does not apply. The only premise upon which Frentz can claim Pipestone’s bid was modified is the language in § 17.1 of the bid specifications that the unit price controls when discrepancies exist. As pointed out in Sciaba Constr. Corp. v. City of Boston, 35 Mass.App.Ct. 181, 617 N.E.2d 1023, 1028 (1993), such a “clause is meant to apply when an aid to interpretation is needed to understand the bid and not when the intent of the bidder is, as here, apparent.” It is abundantly clear from the face of Pipestone’s bid that it intended $11,000 as the total amount bid for item 39, no interpretation is necessary. Therefore, we will not apply that provision as urged by Frentz.

[¶ 19.] In Spina Asphalt Paving Excavating Contractors, Inc. v. Borough of Fairview, 304 N.J.Super. 425, 701 A.2d 441 (1997) a similar situation arose. Spina’s bid listed an erroneous unit price of $400, instead of the intended $4 per unit. The Borough implemented language in the bid specifications similar to that urged by Frentz, increased Spina Asphalt’s total bid from $125,781.85 to $660,381.85, and awarded the contract to the next lowest bidder. The Spina Asphalt court determined there was no ambiguity in the bid and therefore the language in the bid specifications did not apply. It found the $400 unit price to be “grotesquely exorbitant,” and the “error so obvious that the true intent of the bidder was clear beyond any doubt.” Id. at 444. The court held that the Borough had abused its discretion and violated the competitive bidding laws by not awarding Spina Asphalt the contract.

[¶ 20.] Sciaba Constr. is also factually similar to the present case. In that case, Modern Continental Construction Co. (“MCCC”) mistakenly inserted $15 as the unit price per linear foot of paint, rather than $.15. 617 N.E.2d at 1025. The city corrected this mistake and awarded the contract to MCCC. Sciaba Constr., as the next lowest bidder, challenged that decision. In that case, it was apparent from the face of MCCC’s bid, from other bids on that item, and from the city engineer’s estimate that $.15 was the intended bid. The Sciaba Constr. court concluded the error was an “obvious clerical error that deceive[d] no one” and the city was permitted to correct it. Id. at 1028. See Fenske Printing, Inc. v. Brinkman, 349 N.W.2d 47, 48 (S.D.1984) (finding bid “substantially complied” with the specifications despite technical deficiency).

[¶ 21.] These decisions are in accord with the test we have adopted for examining bids on public contracts:

It is a general rule that the bid of one proposing to contract for the doing of a public work must, in order to secure the contract, respond or conform substantially to the advertised terms, plans and specifications. After bids have been received and opened, no material change can be made in any bid which may be more favorable to the successful bidder and is in variance with the specifications.

Gridley v. Engelhart, 322 N.W.2d 3, 8 (S.D.1982) (citations omitted). Therefore, if a bid does not substantially conform to the specifications, it must be rejected. However, “[b]ids are not held to an inflexible standard.” Fenske, 349 N.W.2d at 48. A change made to a bid is material when “it gives one bidder a substantial advantage or benefit not enjoyed by the other bidders.” Gridley, 322 at 8. City’s decision to correct a clerical error on a bid sheet clearly falls under this substantial conformance test. Therefore, we must determine whether Pipestone received a substantial advantage over H&W.

[¶ 22.] As was the case in Sciaba Constr. and Spina Asphalt, here it is obvious on the face of the bid that Pipestone intended to bid $11,000 for all the work required under item 39. We need only look to the next column on the bid sheet where $11,000 is again entered in the “amount bid” column to support this conclusion. The $11,000 bid for item 39 is consistent with the amounts bid by the four other bidders, which ranged from $10,176 to $16,179.84. In addition, this conclusion is consistent with the total bid for the entire project written in words and figures on Pipestone’s bid sheet. Regarding the error on line 69, $8.00 is clearly not material to a contract of over $1.8 million. These errors were obvious clerical errors in Pipestone’s bid. While we strictly construe public bidding statutes, we will not enforce a strained interpretation when the result is an additional burden of over $43,000 upon the citizens of Watertown. Before the bid was corrected, Pipestone’s bid was $43,699.55 less than H & W’s bid. After the correction, Pipestone’s bid was still $43,691.55 less than H & W’s. An eight-dollar difference cannot be considered a “substantial advantage” under the Gridley test. Therefore, City was entitled to correct the errors and award the contract to Pipestone.

[¶ 23.] 3. Whether H&W and/or Frentz were entitled to a writ of mandamus and prohibition awarding the contract to H & W.

[¶24.] Decisions by a circuit court involving mandamus or prohibition are discretionary; therefore, the standard under which we review a trial court’s decision is abuse of discretion. Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 7, 575 N.W.2d 240, 243. To prevail on a writ of mandamus or prohibition, Petitioners must show “a clear legal right to performance of the specific duty sought to be compelled and the [City] must have a definite legal obligation to perform that duty.” Willoughby v. Grim, 1998 SD 68, ¶ 7, 581 N.W.2d 165, 168. As has been established, H&W cannot meet the standing requirement. Because City was entitled to correct the errors in Pipestone’s bid, Frentz cannot show a “clear legal right” to the contract, nor does City have an obligation to award the contract to H & W. Therefore, Frentz was not entitled to mandamus or prohibition, and the circuit court did not abuse its discretion.

[¶ 25.] In addition, mandamus and prohibition will only be granted when no other “plain, speedy and adequate remedy in the ordinary course of law” is available to the petitioner. Cummings v. Mickelson, 495 N.W.2d 493, 496 (S.D.1993); SDCL 21-29-2 (mandamus); 21-30-2 (prohibition). In his amended petition, Frentz sought declaratory relief in addition to writs of prohibition and mandamus. In a declaratory relief action, the circuit court has the “power to declare rights, status, and other legal relations” between the parties. SDCL 21-24-1. Declaratory judgment is particularly useful in determining legal rights associated with “a deed, will, written contract, or other writing constituting a contract....” SDCL 21-24-3. In this case, a “plain, speedy and adequate remedy,” in the form of declaratory relief was available to Frentz. Therefore, he was not entitled to writs of mandamus and prohibition. See Agar, 527 N.W.2d at 286 (denying prohibition because adequate remedy available through SDCL 10-27-2, the “payment under protest” statute); Corbly v. Matheson, 335 N.W.2d 347, 348-49 (S.D.1983) (prohibition denied because petitioner could have removed small claims action to circuit court); Gilmore v. Sandy, 50 S.D. 247, 209 N.W. 342, 342 (1926) (denying prohibition because injunctive relief was available and adequate).

[¶ 26.] Judgment is affirmed.

[¶ 27.] MILLER, Chief Justice, and SABERS, and AMUNDSON, Justices, and WILBUR, Circuit Judge, concur.

[¶ 28.] Wilbur, Circuit Judge for Konenkamp, Justice, disqualified.

      . Using $11,000 as the unit bid price would apportion 97% of the costs of the project for traffic control.

      . The quantity indicated in line 69 was 29 units, the unit bid price being $62. The amount bid, as written, was $1,790. Twenty-nine units multiplied by $62 properly yields a total of $1,798, a difference of $8.

      . H & W’s unit price was $2.20.

      . Frentz is a cousin to Tom Hurd, one of H & W’s principal owners.

      . The circuit court allowed Frentz to join this action based on his status as a citizen and taxpayer of Watertown. That decision has not been appealed.

      . Of the 40 states that have addressed this issue, 27 have granted this type of standing to disappointed bidders.

      . It should be remembered that to prevail on such a claim, a disappointed bidder must rebut the strong presumption of legitimacy traditionally granted governing bodies. See Schrank v. Pennington County Bd. of Comm’rs, 2000 SD 62, ¶ 6, 610 N.W.2d 90, 92.

      . That statute provides as follows:
      The sealed bids shall not be opened until the time and place specified in the advertisement therefor, but must be publicly opened and read at said time and place. Any bid may be withdrawn by letter or by telegraphic communications or in person before the time specified in the advertisement therefor. Bids may be modified by mail, telegraphic notice or facsimile notice received at the place designated in the invitation to bid not later than the time set for the opening of bids. Telegraphic or facsimile modification shall not reveal the bid price but shall provide the addition or subtraction or the modification so that the final prices or terms will not be known to the public corporation until the sealed bid is opened. Any telegraphic or facsimile modification may not be withdrawn after the time set for the opening of bids. Telegraphic modifications must be confirmed in writing by the successful bidder before award of the contract. No bid made shall be changed or altered by telephone.

      . H&W has not submitted any evidence that City engaged in any “favoritism, improvidence, extravagance, fraud [or] corruption.” See Fonder, 76 S.D. at 34, 71 N.W.2d at 620. Nor is there any evidence that Pipestone was attempting to manipulate the competitive bidding framework or deceive other participants in the process. The Gridley “substantial compliance" test should only be applied in cases where no such evidence is presented.


source: Caselaw Access Project

author: AMUNDSON, Justice SABERS, Justice

license: Public Domain

text:
    2001 SD 104
    Connie Kay CUTLER-CHRISTIANS, Plaintiff and Appellee, v. Michael Arlo CHRISTIANS, Defendant and Appellant.
    No. 21637.
    Supreme Court of South Dakota.
    Argued March 20, 2001.
    Decided Aug. 15, 2001.

      David R. Strait of Austin, Hinderaker, Hopper, Strait & Bratland, Watertown, SD, Attorneys for plaintiff and appellee.
    Rick A. Ribstein, Don M. McCarty of McCann, Ribstein & Hogan, Brookings, SD, Attorney for defendant and appellant.
   AMUNDSON, Justice

[¶ 1.] Connie Cutler Christians (Connie) was granted a divorce from her husband Michael Arlo Christians (Michael) on February 2, 2000. Michael appeals the trial court’s jurisdiction to rule on certain matters after Notice of Appeal was filed on the judgment of divorce. We reverse.

FACTS

[¶ 2.] Under the provisions of the judgment of divorce, Connie was to pay Michael $38,205.34 because the property she had received in the divorce exceeded her equitable share. A judgment in the amount of $35,000 was ordered in favor of Connie against Michael for the following: $8000 for attorneys’ fees; $20,000 on her claim for Intentional Infliction of Emotional Distress; and $7,000 for her punitive damages claim. Connie’s $35,000 judgment against Michael was filed with the clerk of courts on March 29, 2000. Due to an error in the judgment docket, Michael’s $38,205.34 judgment against Connie was not entered until March 30, 2000.

[¶ 3.] On May 16, 2000, Connie executed on her judgment against Michael and levied upon the Chevrolet Suburban awarded to Michael in the divorce proceedings. On May 26, 2000 Michael filed a Notice of Appeal and docketing statement appealing certain terms of the divorce. In addition, Michael secured and filed a $45,000 supersedeas bond to stay the execution of Connie’s judgment per SDCL 15-26A-25.

[¶ 4.] On May 30, 2000 Connie filed a Motion for Offset to counterbalance Michael’s judgment against Connie, and a Judgment of Contempt because of Michael’s failure to pay alimony. On June 1, 2000 Michael countered with a Motion for Stay of Judgment and Approval of Super-sedeas Bond and Motion for Contempt. A hearing was held on June 14, 2000.

[¶ 5.] At the conclusion of the hearing, the trial court approved Michael’s bond without objection from Connie, therefore, Michael contends that the trial court lacked jurisdiction to find him in contempt for failure to pay alimony because he had filed a notice of appeal and filed the required bond. The court denied the request to stay the alimony payments pending appeal. In addition, the court held Michael in contempt for his failure to pay alimony and assessed attorneys’ fees against him associated with the contempt hearing. Although the court did not allow Connie’s set-off of $35,000 against the $38,205.34 she owed Michael, the court, upon its own motion, had Michael’s $35,000 judgment removed from the docket. Michael appeals raising the following issue:

Whether filing a Notice of Appeal and bond stays the enforcement of an award of alimony and leaves the trial court without jurisdiction to decide post-divorce motions.

DECISION

[¶ 6.] Michael sought to have the award of alimony to Connie stayed until the matter was resolved on appeal. Michael argues that the Notice of Appeal filed on May 24, 2000 coupled with a $45,000 super-sedeas bond leaves the circuit court without jurisdiction to consider anything other than “trivial matters.” See Ryken v. Ryken, 440 N.W.2d 307 (S.D.1989). Thus, Michael contends that the trial court lacked jurisdiction to hear the matters it had decided on June 14, 2000.

[¶ 7.] A final judgment or order subject to appeal is stayed pending appeal to the Supreme Court if done in accord with SDCL ch 15-26A. In part, SDCL 15-26A-25 provides, “An appeal from a judgment or order shall not stay enforcement of circuit proceeding ... unless the appellant executes a supersedeas bond in the amount and form approved by the circuit court [.] ” Also, SDCL 15-26A-32 adds: “[wjhen an approved supersedeas bond is filed it shall stay all further proceedings in circuit court upon the judgment or order accordingly!.]” Thus, we are called upon to determine whether Michael has complied with the statutory scheme set by the legislature.

[¶ 8.] “Statutory interpretation presents a question of law reviewable de novo.” Satellite Cable Sws. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480.

One of the primary rules of statutory ... construction is to give words and phrases their plain meaning and effect. This court assumes that statutes mean what they say and that legislators have said what they meant. When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court’s only function is to declare the meaning of the statute as clearly expressed in the statute.

Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (quoting South Dakota SIF v. CRE, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209). The statutory authority conferring appellate jurisdiction is clear. If a party properly and timely files a Notice of Review and the bond secured by the appellant is approved by the circuit court, appellate jurisdiction is conferred. See SDCL 15-26A-25; SDCL 15-26A-32.

[¶ 9.] In this case, two facts are undisputed: 1) Michael’s Notice of Appeal was properly entered, and 2) the amount of the supersedeas bond was properly approved by the circuit court. These facts dictate our decision today. Because Michael followed the prescribed steps in conferring an appeal to the issues central to the post-divorce hearing on June 14, 2000, the circuit court lacked jurisdiction. Therefore, as the order for alimony was within the same judgment as the other orders appealed therefrom, the order for alimony should have been stayed by the circuit court pending appeal. While the circuit court does have the authority, under SDCL 25-4-38, to provide interim alimony, this was not done. Cf Ryken, supra at 308 (holding that although the circuit court was without jurisdiction to hear the contempt motion, the court had the authority to order husband to pay interim alimony). As the order of alimony is stayed, the contempt order against Michael is to be absolved. See Ryken, supra.

[¶ 10.] We reverse and remand for proceedings not inconsistent with this opinion.

[¶ 11.] MILLER, Chief Justice, and KONENKAMP and GILBERTSON, Justices, concur.

[¶ 12.]SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 13.] I agree with the majority opinion that it would have been advisable for the circuit court to award temporary alimony which would allow it to enforce its order while an appeal was pending after an approved bond. Ryken v. Ryken, 440 N.W.2d 307, 308 (S.D.1989). That is one option under Ryken v. Ryken. Nevertheless, here, the circuit court retained the power to enforce its alimony order by contempt.

[¶ 14.] In Ryken, the circuit court attempted to enforce the alimony award through its contempt power while the appeal was pending. I concurred with the majority in Ryken, which held the circuit court was without jurisdiction to make such an order of contempt. In that case, the circuit court had approved the superse-deas bond and therefore it was without jurisdiction to enforce its order. That decision was dictated by SDCL 15-26A-25 which provides:

An appeal from a judgment or order shall not stay enforcement proceedings in the circuit court ... unless the appellant executes a supersedeas bond in the amount and form approved by the circuit court.

(Emphasis added). SDCL 15-26A-25 and SDCL 15-26A-32 create a necessary condition precedent, approval of the superse-deas bond. With such approval, the circuit court’s enforcement power is stayed. Likewise, a decision not to approve the supersedeas bond retains power in a circuit court to enforce its order. SDCL 15-26A-25, 32. Here, the circuit court did not approve the bond to stay payment of alimony:

The court will enter it’s order approving the supersedeas bond. The court will also enter it’s order staying the judgment, the judgments plural, that the plaintiff has against the defendant in the sums of $8,000, $20,000, and $7,000, which I believe total $35,000. The court will not stay payment of alimony or the requirement that the parties exchange property in accordance with the court’s equitable division of property.

(Emphasis added). The circuit court did not relinquish its power to enforce its order concerning alimony. As such, the order of contempt was proper and the circuit court should be affirmed.

[¶ 15.] Therefore, I dissent.

      . Also included in the judgment against Michael was the award of alimony to Connie.

      . Even though Michael, through legal representation, argued the merits of the motions in front of the circuit court, one cannot confer subject matter jurisdiction by agreement, consent, or waiver. See Matter of Guardianship of Sasse, 363 N.W.2d 209, 212 (S.D.1985); Honomichl v. State, 333 N.W.2d 797 (S.D.1983). Therefore, this Court is not persuaded by Connie's argument that Michael waived jurisdiction, by Connie’s argument that Michael waived jurisdiction.


author: MILLER, Chief Justice SABERS, Justice

text:
    2001 SD 112
    FREEMAN COMMUNITY HOSPITAL AND NURSING HOME, Appellant, v. HUTCHINSON COUNTY; Jerome Hoff, Auditor; Donna Zeeb, Director of Equalization; Scott Schleske, Commissioner; Gillas Stern, Commissioner, Russell A. Leonard, Commissioner, et al., Appellees.
    No. 21656.
    Supreme Court of South Dakota.
    Argued May 30, 2001.
    Decided Aug. 22, 2001.
    Rehearing Denied Sept. 11, 2001.

      Jeremiah D. Murphy, Jeffrey C. Clapper of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD; Don A. Bierle of Bierle & Michels, Yankton, SD, Attorneys for appellant.
    Timothy R. Whalen, Lake Andes, SD, Attorneys for appellees.
    Lisa Z. Rothschadl, Hutchinson County State’s Attorney, Tyndall, SD, Attorney pro tern.
   MILLER, Chief Justice

[¶ 1.] In this appeal we hold that a congregate living facility owned and operated by a community hospital is entitled to tax-exempt status.

FACTS

[¶ 2.] In 1996, Freeman Community Hospital and Nursing Home (Hospital), a 501(c)(3) non-profit organization which is licensed under SDCL 34-12, built a ten-unit living facility in Freeman, South Dakota. The facility, known as Walnut Street Village (WSV), is located one-half block from the hospital. It intended the property to qualify for tax-exempt status as a congregate living facility under South Dakota law. WSV houses ten elderly

people whose ages mostly range in the eighties. Under a residency agreement, occupants lease the living quarters, which include a full kitchen and two wheelchair accessible bathrooms. WSV also provides breakfast everyday at no additional charge and residents have access to two more meals for a nominal fee through either Hospital or Meals-on-Wheels. Occupants’ phones are connected by speed dial to Hospital’s nurse station for use in case of medical emergency or maintenance needs.

[¶ 3.] In 1997, Hospital applied to the Hutchinson County Board of Equalization for tax-exempt status for WSV. The Board denied tax-exempt status in April 1998 and Hospital appealed. On appeal, the circuit court affirmed. We reverse.

STANDARD OF REVIEW

[¶ 4.] Whether a taxing statute creates an exemption under a given set of facts is a question of law. See Robinson & Muenster Assoc., Inc. v. South Dakota Dep’t of Revenue, 1999 SD 132, ¶ 7, 601 N.W.2d 610, 612. In effecting the purpose of a statute, we give the words in the statutes their “ ‘reasonable, natural, and practical meaning.’ ” Id. (citing Matter of Sales & Use Tax Refund Request of Media One, Inc., 1997 SD 17, ¶ 9, 559 N.W.2d 875, 877; National Food Corp. v. Aurora Cty. Bd. of Comm’rs, 537 N.W.2d 564, 566 (S.D.1995); Thermoset Plastics, Inc. v. Department of Revenue, 473 N.W.2d 136, 138-39 (S.D.1991)). We construe statutes granting tax exemptions in favor of the taxing power and we give no deference to the conclusions of the taxing authority or the circuit court when reviewing a question of law. Department of Revenue v. Sanborn Tel. Coop., 455 N.W.2d 223, 225 (S.D.1990) (quoting Midcontinent Broad. Co. v. Revenue Dep’t, 424 N.W.2d 153, 154 (S.D.1988)).

DECISION

[¶ 5.] 1. WSV qualifies for tax-exempt status.

[¶ 6.] The parties dispute whether Hospital has shown that WSV satisfies the requirements for tax-exempt status under SDCL 10-4-9.3. The statute provides:

Property owned by any corporation, organization or society and used primarily for human health care and health care related purposes is exempt from taxation. Such corporation, organization or society must be nonprofit and recognized as an exempt organization under section 501(c)(3) of the United States Internal Revenue Code of 1954, as amended, and in effect on January 1, 1986, and may not have any of its assets available to any private interest. Such property may be a hospital, sanitarium, orphanage, mental health center or adjustment training center regulated under chapter 27A-5, asylum, home, resort, congregate housing or camp. Congregate housing is health care related if it is an assisted, independent group-living environment operated by a health care facility licensed under chapter 3⅛-12 which offers residential accommodations and supporting services primarily for persons at least sixty-two years of age or disabled as defined under chapter 10-6A. Supporting services must include the ability to provide health care and must include a food service which provides a balanced nutrition program. Such health care facility must admit all persons for treatment consistent with the facility’s ability to provide medical services required by the patient until such facility is filled to its ordinary capacity and must conform to all regulations of and permit inspections by the South Dakota Department of Health.

SDCL 10-4-9.3 (emphasis added). County stipulated that WSV meets all the statutory requirements except: (1) the ability to provide healthcare; (2) a food service which provides a balanced nutritional program; and (3) Hospital assets are not available to private interests. It is important to remember that a congregate living facility is intended to provide an independent living environment for elderly citizens with some assistance. SDCL 10-4-9.3.

[¶ 7.] a. Health care

[¶ 8.] Under SDCL HM-9.3, a congregate living facility must have “the ability to provide healthcare” in order to qualify for tax-exempt status. The burden is on the Hospital to show that it has the ability to provide healthcare. Interestingly, the parties stipulated to the following facts:

11. The nursing staff and attending physician determine the medical condition status and ability of the occupant during the term of occupancy and in the event of emergency.
13. Alternative programs such as independent home health care services or similar services offered to occupants are as follows:
(a) Health screening
(b) Special diets provided and monitored
(c) Household services
(d) Social Service/activity programs
(e) Emergency call system, including response assessment and appropriate follow-up action
(f) Wellness education material and workshops
14. More intensive services provided for a long duration of time are available through community based health programs. The Freeman Community Hospital Health Agency is available to provide assistance in daily living activities, i.e., bathing, grooming, transferring and other models of activity required to maintain independence. These activities supplement the services provided by the Staff and are arranged for by the facility.

The stipulated facts provide ample support for Hospital’s assertion that it has the ability to provide health care to WSV occupants. In fact, we find it curious that County would stipulate to these facts and then argue that Hospital is not able to provide health care.

[¶ 9.] County argues that the services offered to WSV occupants are no different than health care services available in the community at large. Hospital agrees that this is true, but it correctly points out that the statute does not require it to offer unique or exclusive healthcare. We agree. The statute requires that Hospital have the ability to provide healthcare. County stipulated to facts indicating Hospital has such ability. Thus, giving the words in the statute a reasonable, natural and practical meaning, Hospital has sustained its burden of showing it has the ability to provide healthcare.

[¶ 10.] b. Food service

[¶ 11.] In 1988, two years after it adopted SDCL 10-4-9.3, the legislature amended the statute. Originally, it required congregate living facilities to provide a “full” food service; however, the 1988 amendment, among other changes, removed the word “full.” The legislature’s removal of the word “full” as it modifies food service indicates its desire to ease compliance with this requirement by not requiring a full food service be provided.

[¶ 12.] The parties do not dispute the facts concerning food service. WSV occupants have available to them, every day of the year, a breakfast prepared under the supervision of dietary management to comply with federal guidelines. The breakfast is included in the monthly rent. Two more daily meals are also available to residents through Meals-on-Wheels or through Hospital’s dietary department. Additionally, WSV has the ability to provide for special needs diets and has done so on at least one occasion. Through its daily breakfast and the availability of lunch and dinner everyday, we conclude that Hospital’s food service provides a balanced nutrition program to occupants, as contemplated by the statute.

[¶ 13.] County, once again, argues that the balanced nutrition program available to WSV occupants is available in the community at large. Hospital contends that this is irrelevant under the statute. We agree. The statute does not require that the food service be unique or different from what is available in the community.

[¶ 14.] c. Assets

[¶ 15.] County’s final argument concerning fulfillment of the statutory requirements asserts that Hospital’s financing of WSV permits private interests in Hospital’s assets. County bases this argument on the language prohibiting private interests in any of Hospital’s assets. As Hospital notes, the language is merely a reflection of one of the requirements in the Internal Revenue Code for qualifying as an exempt organization under 501(c)(3). 26 USC § 501(c)(3).

[¶ 16.] Although County stipulated that Hospital is a 501(c)(3) exempt organization as required under the statute, it attempts to parlay the language concerning private interest into a prohibition against the Hospital leasing the WSV units to the occupants. Given the statutory language defining qualified congregate housing as that “which offers residential accommodations,” we find the County’s argument lacks merit. SDCL 10-4-9.3. Hospital asserts that its articles of incorporation were amended in 1966 to provide for the distribution of assets upon dissolution to: (1) one or more exempt purposes; (2) a similar exempt organization; or (3) the Federal or State government. Hospital argues this fulfills the purpose of the statutory language in the Internal Revenue Code and our statute. We agree. Although we strictly construe “laws exempting property from taxation” in favor of the taxing power, we will not contrive a strained construction. Application of Veith, 261 N.W.2d 424, 426 (S.D.1978) (citations omitted). Rather, we must “give a reasonable, natural, and practical construction to effectuate” the reason for which the exemption was created. Id.

[¶ 17.] 2. Hospital does not need to show it relieves a governmental burden.

[¶ 18.] “[W]e must assume that the legislature, in enacting a provision, had in mind previously enacted statutes relating to the same subject.” Meyerink v. Ncnihivestem Public Svc. Co., 391 N.W.2d 180, 184 (S.D.1986). County argües that Hospital must show it is relieving a governmental burden as is required under SDCL 10-4-9.1 and SDCL 10-4-9.2. This argument completely lacks merit for two reasons.

[¶ 19.] First, before 1986, SDCL 10-4-9 provided a broad tax exemption for “ ‘property belonging to any charitable, benevolent, or religious society....’” Lutherans Outdoors in South Dakota, Inc. v. South Dakota State Bd. of Equalization, 476 N.W.2d 140, 141 (S.D.1991). In 1986, the legislature amended SDCL 10-4-9 limiting its application to only property owned a religious society. At the same session, the legislature created 10-4-9.1, 10-4-9.2 and 10-4-9.3. Section 9.1 governs tax-exempt status for public charities and section 9.2 governs tax-exempt status for benevolent organizations. Each requires its subject entity to relieve a governmental burden as one condition to qualify for the property tax exemption. Section 9.3 governs tax-exempt status for nonprofit corporations, such as Hospital. Importantly, section 9.3 does not require a nonprofit corporation to relieve a governmental burden. Had the legislature intended to place that requirement on nonprofit corporations it would have done so, but it did not.

[¶ 20.] Second, when the legislature amended section 9.3 in 1988, it did not add the requirement that nonprofit corporations relieve a governmental burden. This is reflective of its intent.

[¶ 21.] County’s argument lacks merit and we hold that Hospital need not relieve a governmental burden to qualify for property tax exemption under the present statutory scheme.

[¶ 22.] Reversed.

[¶ 23.] AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

[¶ 24.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 25.] I agree that it is not necessary for this congregate living facility (CLF) to show it relieves a governmental burden, but I do not agree that it has shown that it has the ability to provide the necessary supporting services of:

1) health care, and
2) “food service which provides a balanced nutritional program.”

Quite simply, it has only shown that its parent (Hospital) has those abilities. It is not enough to merely make these required services available part-time to the residents of the CLF to qualify for tax-exempt status. The requirements of SDCL 10-4-9.3 are mandatory and unforgiving and there is no tax exemption for almost complying or complying in part.

[¶ 26.] The majority opinion gives lip service to the rule that we will strictly construe “laws exempting property from taxation in favor of the taxing power” and then violates the rule by “contriving] a strained construction.” Application of Veith, 261 N.W.2d at 426. The “supporting services” required by SDCL 10-4-9.3 include the ability to provide health care and also a balanced nutritional food program. This means that CFL must be able to provide health care and a balanced nutritional food program all the time, even if all these services are not always used by all residents all the time. It certainly does not mean mere availability within the community at large.

[¶ 27.] The majority opinion determines that County has stipulated itself out of court. Nonsense. The stipulated facts do not satisfy CLF’s burden, instead, they provide an overview of the uncontroverted services CLF makes “available” and then the courts determine if they are sufficient for tax exemption. They are not. Neither the evidence presented, nor the stipulation, satisfies these statutory requirements.

[¶ 28.] The health care services offered at CLF are unremarkable at best. The “health screening” provided by CLF consists of a form listing whom to contact in case of an emergency, a physician’s name, and whether the resident requires a cane, walker, etc. County offered expert testimony that indicated this is not the typical health screening process, generally a health screening would include such things as blood pressure checks, cholesterol and blood sugar screens. The “household services” referenced in the stipulation includes such things as snow removal, window washing and general yard work. None of which help establish CLF’s claim to gain tax-exempt status.

[¶ 29.] The “emergency call system” provided by CLF includes nothing more than a programmed telephone set for the hospital. This system puts a resident in contact with an on-call nurse who then determines if 911 should be called. This emergency call system can also be used to summon maintenance for nonemergency repairs, this may be convenient but it is not enough to satisfy the statute. Is this really what the legislature envisioned when it attempted to attract safe, caring and responsive facilities for our older citizens through the tax-exempt scheme? The stipulation acknowledges only that the parent (Hospital) makes available the types of services required to satisfy the requirements of SDCL 10-4-9.3. The majority opinion misreads Hospital’s availability as the equivalent of CLF’s ability.

[¶ 30.] Additionally, the stipulation provides that the CLF offers “special diets.” What this really means is that CLF tenants are provided one meal, breakfast. All other meals can only be obtained through the meals-on-wheels service or at Hospital. Obviously, these same services are available at local cafes or restaurants. Once again, Hospital, not CLF, makes available the services that CLF claims it has the ability to provide. The statute clearly requires that CLF have the ability to provide “a balanced nutritional program.” Even the CLF expert testified that a balanced breakfast is not a balanced nutritional program. Basically, CLF has the ability to provide less than one-third of its requirement. The majority opinion determines this is sufficient under the statute. I do not. Because CLF has not met the stringent requirements, the general rule in SDCL 10-4-1 requiring property to be subject to taxation should control.

[¶ 31.] Therefore, I dissent.

[¶ 32.] We should affirm the circuit court in all respects.

       Furthermore, congregate living facilities are the only property to which the tax exemption is available that are not subject to state licensing. A congregate living facility would be subject to licensure if it had a doctor or nurse as a full time staff member.


author: SABERS, Justice (on reassignment). MILLER, Justice

text:
    2001 SD 109
    STATE of South Dakota, Plaintiff and Appellant, v. Vincent MYHRE, Defendant and Appellee.
    No. 21515.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2000.
    Reassigned June 29, 2001.
    Decided Aug. 22, 2001.

      Glenn A. Brenner, Pennington County States Attorney.
    Matthew M. Brown, Deputy States Attorney Rapid City, SD, Attorneys for plaintiff and appellant.
    Kenneth R. Dewell of Viken, Viken, Pe-chota, Leach & Dewell, Rapid City, SD, Attorneys for defendant and appellee.
   SABERS, Justice (on reassignment).

[¶ 1.] Magistrate Judge Shawn Pahlke granted Myhre’s motion to suppress his second statement, the evidence seized and quashed the arrest. This Court granted the State’s petition for intermediate appeal. We affirm.

FACTS

[¶ 2.] Bruce Nachtigall is an assistant regional supervisor for law enforcement for the South Dakota Department of Game, Fish & Parks. At 4:30 p.m. on November 20, 1999, he was on patrol checking deer hunters north of Wall, South Dakota, when he observed a Suburban parked 50 yards off the road. Three people were outside of the vehicle; one was gutting a deer.

[¶ 3.] The three individuals were Darrell Kurth, Myhre, and his son, Todd. Todd was the only person with a deer tag left. Darrell, who was “really nervous” and shaking, retrieved it from the glove compartment. Nachtigall visited with the trio about the hunt. He did not believe their description of the hunt was accurate due to the location of the vehicle in relation to the deer and Darrell’s nervousness. He had no more questions, however, and left to drive down the road to see if there were rifle casings or skid marks which would indicate the shooting of the deer from the road. He saw neither.

[¶ 4.] Nachtigall then came upon another group of hunters a half mile away and stopped to visit with them. They described seeing a northbound Suburban following a deer. Both disappeared from their sight and then they heard a gunshot. Nachtigall decided to go back and interview the Myhre party since “this sounded different from the story they told me.”

[¶ 5.] When Nachtigall returned, he saw the Myhre party driving toward the approach to the road. He pulled parallel to the vehicle and told Todd, who was in the front passenger seat, that he needed to visit with him. He then pulled in behind the Suburban.

[¶ 6.] When Todd was seated in Naeht-igall’s vehicle, Nachtigall told him that the other group of hunters told a totally different story than the Myhre group. He asked for Todd’s version. Todd told him that his father and Darrell shot the deer because it was on their side of the road. Nachtigall directed Todd to remain on the tailgate of his pickup and had Darrell get in the pickup. After questioning, Darrell confirmed Todd’s story. He was told to remain in the pickup.

[¶ 7.] Nachtigall returned to the Suburban and spoke with Myhre who was seated in the back seat behind the driver’s seat. He asked for his version of the story and was told “[w]hatever the other two said.” They “bantered” back and forth for a “little bit” as Myhre kept insisting “whatever the boys said.” Nachtigall told him “what I thought happened, and that I think you guys were coming down the road and the deer crossed the road and you and Darrell shot the deer and Todd didn’t shoot the deer.” Myhre then admitted that Darrell shot once and he shot twice before killing the deer. Nachtigall did not administer Miranda warnings to Myhre prior to this questioning.

[¶ 8.] Myhre was cited for hunting big game without a license. SDCL 41-8-6. Nachtigall then seized all of the rifles and the tagged deer carcass.

STANDARD OF REVIEW

[¶ 9.] A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488. See also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996) (standard of review for questions under the Fourth Amendment); United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.1993). We review findings of fact under the clearly erroneous standard. State v. Almond, 511 N.W.2d 572, 573-74 (S.D.1994). Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo. Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 13, 580 N.W.2d 606, 610.

[¶ 10.] 1. WHETHER THE STATE FAILED TO PRESERVE THE ISSUE FOR APPEAL.

[¶ 11.] At the hearing on the motion to suppress, both sides argued the application of Miranda to the facts of this case. The trial court ruled from the bench:

At this time, I would like to address the Miranda issue first. Clearly, by the testimony given today, the Defendant in this matter, Mr. Myhre, was the subject of the investigation. It’s, also, clear that he had indicated that what he had to say was what the other two individuals said, and that’s all he had to say and he was clearly the person who the officer was questioning at that time. He was not free to leave and, therefore, in this Court’s opinion, he should have been read Miranda at that point. I do find that it was a Miranda violation regarding advisement at that point, and any statements attributable to the Defendant after that point would not be allowed.

The court entered written findings of fact and conclusions of law on Myhre’s motion to suppress. While it is true that the State did not object to the proposed findings on the motion to suppress, this does not constitute a waiver under South Dakota law.

[¶ 12.] Motions to suppress evidence must be raised prior to trial. SDCL 23A-8-3. Pursuant to SDCL 23A-8-8, “[w]here factual issues are involved in determining a motion [to suppress] the court shall state its essential findings on the record.” While this Court prefers that a trial court enter written formal and specific findings and conclusions when it rules on a suppression motion, it has recognized that verbal findings and conclusions made on the record are acceptable. State v. Holiday, 335 N.W.2d 332 (S.D.1983). The Holiday court held:

In harmonizing [State v. ]Stumes, supra, [ 90 S.D. 382, 241 N.W.2d 587 (1976)] and its progeny with SDCL 23A-8-3 and -8, we determine that a trial court judge may verbally enter on the record at the motion hearing the findings of fact and conclusions of law upon which it bases its opinion. In the interest of clarity and to preserve the record for appeal, it may direct prevailing counsel to prepare formal written findings and conclusions. When these are signed and filed they meet the requirement of SDCL 23A-8-8 that the trial court’s findings be stated on the record. Furthermore, the exercise of entering such written findings and conclusions will most likely insure against speculation or conjecture as to the basis upon which the trial court grounded its decision. We hold, hoivever, that such written findings and conclusions are not within the contemplation of SDCL 15-6-52(a). Opposing counsel is not required nor even afforded the opportunity to present alternatives or objections, yet, as in the case of findings verbalized on the record, his issues are preserved for appeal.

Holiday, 335 N.W.2d at 338 (emphasis added).

[¶ 13.] 2. WHETHER THE TRIAL COURT ERRED IN GRANTING MYHRE’S MOTION TO SUPPRESS.

[¶ 14.] In this case, the trial court concluded that Nachtigall had a constitutional obligation to advise Myhre of his Miranda rights prior to the commencement of the second interrogation because he was the primary focus of the officer’s investigation and in custody.

[¶ 15.] Miranda warnings must be given whenever a defendant is interrogated while in police custody. State v. Thompson, 1997 SD 15, 560 N.W.2d 535.

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of the law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warning to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’

Id. at ¶ 23, 560 N.W.2d at 540. "Miranda imposes ‘concrete constitutional guidelines for law enforcement agencies and courts to follow.” State v. Stanga, 2000 SD 129, ¶ 13, 617 N.W.2d 486, 489 (quoting Miranda v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 1611, 16 L.Ed.2d 694, 705 (1966)). The basic tenet of Miranda rights is that a suspect is entitled to be told that “anything he says can be used against him in a court of law.” Id. This constitutional protection is required whenever a suspect is the subject of “custodial interrogation.” State v. Morato, 2000 SD 149, ¶ 17, 619 N.W.2d 655, 661. The lynchpin in this case is whether Myhre was in custody, and, under the precedent of this Court, he was.

[¶ 16.] In State v. Morato, we determined that Morato was not in custody and therefore Miranda warnings were not required. Id. ¶ 20. The circumstances surrounding that questioning supported that determination. Morato was placed in a patrol car but was informed that he was “free to leave” and he was “not under arrest.” Id. ¶ 19. The officer’s tone was conversational and the suspect spoke freely. Id. Given the tone of this encounter, we concluded, “the objective conditions surrounding the interview remained noncustodial.” Id. ¶ 20.

[¶ 17.] In State v. Anderson, we recognized that Anderson’s voluntary acceptance of an invitation to the police station and his choosing to speak with the police while not restrained in any way did not constitute custodial interrogation. 2000 SD 45, ¶ 77, 608 N.W.2d 644, 666. During questioning, Anderson was reassured he was “free to leave at any time.” Id. The setting in Anderson never became coercive and at the end of the interview he was allowed to leave and return home. Id.

[¶ 18.] In State v. Herting, we held that “subjective thoughts are not a proper basis for the determination of whether [the suspect] was in custody.” 2000 SD 12, ¶ 13, 604 N.W.2d 863, 866. We reiterated that “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Id. Under the circumstances in Herting, a united Court determined that the Officer’s lone question of “what happened tonight” was not enough to trigger the Miranda protections. Id. ¶ 12.

[¶ 19.] Likewise, in State v. Ges-inger, we held that an officer’s testimony at the suppression hearing that the suspect “was not free to leave” was not determinative. 1997 SD 6, ¶ 18, 559 N.W.2d 549, 552. However, it is relevant in determining how the reasonable person would have perceived the officer’s actions. Id. Clearly, an officer’s perception that a suspect is not free to leave could reflect in his actions. Therefore, we must turn to the facts of this case and review them independently to determine whether Myhre was in custody. See Morato, 2000 SD 149, ¶ 17, 619 N.W.2d at 661 (stating that “[w]e independently review whether a suspect was in custody, entitled to Miranda warnings.”).

[¶ 20.] A review of the facts surrounding Myhre’s encounter with Nachtigall reveals he was in custody for Miranda purposes. Nachtigall had visited with the group of hunters not once but twice. He returned and separated the three men and conducted interviews. After these interviews, he approached Myhre who had been ordered to remain in the vehicle. Armed with statements from the other two implicating Myhre, Nachtigall proceeded with his interview. He never informed Myhre that he was free to leave nor that Myhre did not have to talk to him. Myhre repeatedly attempted to avoid questioning by deferring to whatever the others had said. Nachtigall clearly told him that he believed Myhre illegally shot the deer and repeatedly questioned him to that extent. This questioning went beyond general on the scene questioning and fact gathering but was instead intended to elicit an incriminating response.

[¶ 21.] It is clear that the tone of the questioning was not conversational, Nacht-igall testified that Myhre “couldn’t leave,” and that Myhre did not speak freely or voluntarily. These circumstances would lead a reasonable person to believe that he was in custody. Fortunately, we are dealing with the shooting of a deer, not a person. Yet, the constitutional safeguards are absolutely identical. Envision a shooting suspect ordered to remain in his vehicle. The officer questions his companions and he is the prime suspect. The suspect refuses to answer questions but the officer persists and accuses him of the shooting. The officer acknowledges he is not free to leave and the questioning is intended to elicit an incriminating response. Miranda warnings are required.

[¶ 22.] We affirm.

[¶ 23.] AMUNDSON and KONENKAMP, Justices, concur.

[¶ 24.] MILLER, Chief Justice, and GILBERTSON, Justice dissent.

MILLER, Justice

(dissenting).

[¶ 25.] The majority misapprehends the relevant inquiry and South Dakota’s settled law in Issue Two leading it to wrongly conclude that Myhre’s statements should be suppressed. I respectfully dissent.

[¶ 26.] The standard for review of a trial court’s ruling on a motion to suppress is:

A trial court’s findings of fact from a suppression hearing must be upheld unless they are clearly erroneous.... This court’s function under the clearly erroneous standard is to determine whether the decision of the lower court lacks the support of substantial evidence, evolves from an erroneous view of the applicable law or whether, considering the entire record, we are left with a definite and firm conviction that a mistake has been made. In making this determination, we review the evidence in a light most favorable to the trial court’s decision.

State v. Meyer, 1998 SD 122, ¶ 16, 587 N.W.2d 719, 722-23 (citations omitted).

[¶ 27.] In this case the trial court concluded that Nachtigall had a constitutional obligation to advise Myhre of Miranda prior to the commencement of the second interrogation because he was the primary suspect and the focus of the officer’s investigation. The trial court’s reliance on this one factor is contrary to settled South Dakota law and the majority’s affirmance of the trial court’s ruling only serves to further the misapplication of South Dakota law to the undisputed facts of this case.

[¶ 28.] Miranda warnings must be given whenever a defendant is interrogated while in police custody. State v. Thompson, 1997 SD 15, ¶ 23, 560 N.W.2d 535, 540.

Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of the law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warning to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda learnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody. ’

Id. (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977) (emphasis added).

[¶ 29.] In State v. Herting, this Court elaborated:

The test in determining whether Miranda warnings are required ‘is not whether the investigation has focused on any particular suspect, but rather, whether the person being questioned is in custody or deprived of his or her freedom to leave.’ The United States Supreme Court recently expanded on the Mathiason standard, holding ‘the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.’ Further, this Court has stated:
An officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her ‘freedom of action.’ Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer’s degree of suspicion will depend upon the facts and circumstances of the particular case. In sum, an officer’s views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer’s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.

2000 SD 12, ¶ 9, 604 N.W.2d 863, 865 (citations omitted) (emphasis added).

[¶ 30.] Our review of the objective circumstances surrounding Nachtigall’s interrogation of Vincent reveals that Vincent was not deprived of his freedom to leave, and he was not “in custody” for purposes of Miranda.

[¶ 31.] As a conservation officer, Nachtigall has a duty to enforce every state statute dealing with game, fish, parks, forestry, or boating. SDCL 41-15-10.1. On the day of this incident, he was patrolling alone in a remote, rural area. He returned to the Myhre party a second time after hearing a different story from another group of hunters.

[¶ 32.] When Nachtigall questioned Vincent the second time he was attempting to gather facts about the shooting of the deer since accounts differed. Vincent was allowed to remain where he was seated in the Suburban during questioning. Nachti-gall took no verbal or physical action to restrain Vincent’s movement. Contrary to the majority’s assertion, the facts and circumstances in this case indicate Vincent was free to leave if he chose. Vincent did not choose to leave, but, rather, he stayed and answered Nachtigall’s questions. Nachtigall’s questioning of Vincent constituted general on-the-scene questioning and fact gathering, “absolutely essential for law enforcement officers to perform their jobs well and to investigate possible crimes.” Herting, 2000 SD 12, ¶ 10, 604 N.W.2d at 865 (citation omitted). As this Court has previously noted:

When circumstances demand immediate investigation by the police, the most useful, the most available tool for such investigation is general on-the-scene questioning, designed to bring out the person’s explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.

Id. (citation omitted).

[¶ 33.] Vincent was not subjected to a custodial interrogation under the circumstances presented. For the foregoing reasons, I dissent from the majority’s holding in Issue Two.

[¶ 34.] GILBERTSON, Justice, joins this dissent.


author: TUCKER, Circuit Judge

text:
    2001 SD 110
    Randy HARRIS, Plaintiff and Appellant, v. Bonnie RIGGENBACH, Defendant and Third Party Plaintiff, and Jean Cline, Third Party Defendant and Appellee.
    No. 21709.
    Supreme Court of South Dakota.
    Argued March 19, 2001.
    Decided Aug. 22, 2001.
    Steven C. Beardsley of Truhe, Beardsley, Jensen, Helmers & VonWald, Rapid City, SD, Attorneys for plaintiff and appellant.
    Charles M. Thompson of May, Adam, Gerdes, Thompson, Pierre, SD, Attorneys for third ■ party defendant and appellee.
   TUCKER, Circuit Judge

[¶ 1.] Randy Harris (Harris) appeals from an order granting summary judgment in a defamation action against Jean M. Cline (Cline). We affirm.

FACTS

[¶ 2.] Harris’ former wife hired Attorney Cline to represent her in visitation and custody proceedings concerning Harris’ son. During the same time, defendant and third-party plaintiff Bonnie Riggenbach was counseling the Harris’ son. In preparation for the visitation and custody hearing, Cline spoke with Riggenbach, whom she had known professionally for fifteen years. Riggenbach expressed her concerns that Harris had sexually and physically abused his son. Cline then prepared an affidavit that included a signed statement by Riggenbach that, “based on my training, background, and working with the child, I believe that he has been abused both physically and sexually. That the evidence presented indicates that this abuse comes from Joshua’s father, Randy Harris.”

[¶ 3.] Riggenbach admitted that she does not perform evaluations or make determinations regarding physical and sexual abuse. However, Riggenbach testified that she had legitimate concerns about Harris having custody of his son, and that the affidavit was true, even though the language was strong. She reviewed the affidavit, signed it under oath, and at no time challenged or sought to modify the language in the affidavit. Riggenbach knew that she was signing the affidavit as her sworn testimony of her opinions, and that it would be used in court.

[¶ 4.] It was later determined that no sexual abuse ever occurred, and that Harris never abused his child. Harris originally brought suit against Riggenbach for defamation, negligence, and negligent and/or intentional infliction of emotional distress. When Cline was brought in as a third party defendant to these claims, Harris amended his complaint to assert these claims directly against Cline. The trial court granted Cline’s motion for summary judgment against both Harris and Riggen-bach. It is from this order that Harris appeals.

STANDARD OF REVIEW

[¶ 5.] This Court’s standard of review of a trial court’s granting of summary judgment is well established:

In reviewing a grant or a denial of summary judgment under SDCL 16 — 6—66(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorable to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

Peterson v. Hohm, 2000 SD 27, ¶ 7, 607 N.W.2d 8, 10. “Summary judgment will be affirmed if there exists any basis which would support the trial court’s ruling.” Wolff v. SD Game, Fish and Parks Dept., 1996 SD 23, ¶ 32, 544 N.W.2d 531, 537 (citing St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994)).

DECISION

ISSUE ONE

[¶ 6.] Does SDCL 20-11-5(2) preclude assertion of a defamation claim against Attorney Cline?

[¶7.] Defamation, including libel or slander, is statutorily defined as an unprivileged publication. SDCL 20-11-3 and 20-11-4. If, however, a publication or communication is privileged, it is not actionable as defamation. Petersen v. Dacy, 1996 SD 72, 550 N.W.2d 91, 92. A communication made in any legislative or judicial proceeding is a privileged communication SDCL 20-11-5(2). “A privileged communication under SDCL 20-11-5(2) is ‘absolute and remain[s] privileged whether made with or without malice.’ ” Flugge v. Wagner, 532 N.W.2d 419, 421 (S.D.1995).

[¶ 8.] Harris contends that Cline defamed him when she prepared a defamatory affidavit which was used in open court. Harris claims that absolute immunity does not attach to extra judicial statements. He argues that even if the affidavit is a privileged communication made in a judicial proceeding, discovery is not complete and therefore it is uncertain to whom the allegations were made known and in what venue. Harris alleges that he is “aware the subject matter of the affidavit was made known to employees at the school where his son attends.” Despite Harris’ allegation that the subject matter of the affidavit has fallen on ears outside this judicial proceeding, no individuals outside the proceeding have been identified that are directly aware of any specific statements in the affidavit. Nor are there facts demonstrating that Cline is the source of any general information individuals outside the proceeding might have.

[¶ 9.] An allegation that discovery is not complete and that unknown third parties may know of the affidavit is action-less when there are no supporting facts.

The possibility that discovery will yield evidence favorable to a party opposing summary judgment is not a ground to deny summary judgment where the party opposing summary judgment has failed to invoke the procedures under [Rule 56(f) ] to submit affidavits stating a need for discovery or to request a continuance in order to present further affidavits or depositions in opposition to summary judgment.

Larson v. Baer, 418 N.W.2d 282, 288-289 (N.D.1988). “General allegations which do not set forth specific facts will not prevent issuance of a summary judgment.” Home Fed. Sav. & Loan v. First Nat Bank, 405 N.W.2d 655 (S.D.1987). Harris’ allegations here are insufficient to prevent the summary judgment.

[¶ 10.] Harris further requests that this Court adopt a good faith test to determine whether the absolute privilege found in SDCL 20-11-5(2) applies. He cites Ar-onson v. Kinsella, 58 Cal.App.4th 254, 68 Cal.Rptr.2d 305, 313 (1997), where the court held a statement must be “made with a good faith belief in a legally viable claim” to be privileged. Id. at 313. Thus, he argues, it must be a question of fact for the jury to decide whether Cline had a good faith belief in the affiant’s claim.

[¶ 11.] SDCL 20-11-5(2) does not provide any legislative authority for a good faith exception to the privilege at issue. Because of this absolute privilege, the purpose behind the communication, or the state of mind of the one making the communication is neither material nor relevant. See Hackworth v. Larson, 83 S.D. 674, 165 N.W.2d 705, 709 (S.D.1969); Janklow v. Keller, 90 S.D. 322, 241 N.W.2d 364, 367 (1976).

[¶ 12.] The trial court used the four part test in Janklow to determine whether the absolute privilege applied in this case. The conditions set forth in Jankloiv were: the publication (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objects of the litigation; and (4) involved litigants or other participants authorized by law. Janklow, supra, (citing Bradley v. Hartford Accident & Indemnity Co., 30 Cal.App.3d 818, 106 Cal.Rptr. 718, 722 (1973)). Applying the Janklow factors to the present case, and viewing the evidence most favorable to the non-moving party, the trial court found that all conditions were met. We agree. An absolute privilege attached to Riggenbach’s affidavit and excluded Cline from liability.

ISSUE TWO

[¶ 13.] Did the trial court properly grant summary judgment on the negligence, intentional and negligent infliction of emotional distress, and contribution claims?

[¶ 14.] Harris also asserted claims based on negligence, intentional infliction of emotional distress and negligent infliction of emotion distress. These claims are all based on the same facts as the defamation claim. This Court has previously ruled, “The defense of absolute privilege or immunity under the law of defamation avoids all liability.” Hughes v. O’Connor, 313 N.W.2d 463 (S.D.1981). “The salutary purpose of the privilege should not be frustrated by putting a new label on the complaint.” Janklow, supra at 370 (quoting Thornton v. Rhoden, 245 Cal.App.2d 80, 53 Cal.Rptr. 706, 719 (1966)). The trial court properly granted summary judgment on each of these claims.

[¶ 15.] We affirm.

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

[¶ 17.] TUCKER, Circuit Judge, for KONENKAMP, Justice, disqualified.