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

text:
    2005 SD 38
    Curtis W. HANKS, Plaintiff and Appellee, v. CORSON COUNTY BOARD OF COMMISSIONERS, Defendant and Appellant.
    No. 23054.
    Supreme Court of South Dakota.
    Argued Oct. 5, 2004.
    Reassigned Dec. 13, 2004.
    Decided March 16, 2005.

      Eldon R. Anson, Curtis W. Hanks of Hanks & Anson, Lemmon, South Dakota, Attorneys for plaintiff and appellee.
    Thomas E. Simmons of Gunderson, Palmer, Goodsell & Nelson, L.L.P., Rapid City, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice (on reassignment).

[¶ 1.] The Corson County Board of Commissioners (Board) appeals the decision of the circuit court concerning the validity of a contract the Board entered into with a private law firm. The sole issue is whether the Board had legal authority to contract with an attorney for representation in civil matters on behalf of the county despite having a duly elected state’s attorney. The circuit court found that the Board did not have such authority and voided the contract. We reverse and remand.

FACTS

[IT 2.] Curtis Hanks was elected part-time state’s attorney for Corson County in 2000 and took office in January, 2001. He brought this action after the Board entered into a contract for services with the Bogue and Bogue law firm in January, 2003. The contract provided that in exchange for $25,000, the firm would “provide and be responsible for performing all civil representation regarding the County as may be requested, in state, federal and tribal courts, as set forth in Chpt 7-16” for the 2003 calendar year. The contract did not expressly distinguish between civil actions venued within the county and those venued elsewhere. Hanks appealed the Board’s decision to circuit court and argued that the Board lacked legal authority to enter into the contract. The circuit court determined that the Board was “without legal authority to substitute its lawyer of choice for the lawyer that has followed the proper procedure to become the elected state’s attorney of Corson County to address civil matters originating within the county.” The circuit court therefore held that the contract was void and the decision of the Board was reversed.

[¶ 3.] The Board appeals, arguing that it has legal authority to enter into the contract for legal services. Because the trial court did not determine the extent of legal services contemplated by the contract and because the effects of Curtis Hank’s position as an Associate Justice of the Standing Rock Tribal Court were not considered, we reverse and remand for further consideration.

STANDARD OF REVIEW

[¶ 4.] The question whether the Board of Commissioners had legal authority to act as it did is a legal question which we review de novo. Kirschenman v. Hutchinson County Bd. of Com’rs, 2003 SD 4, ¶ 2, 656 N.W.2d 330, 332 (additional citation omitted).

ISSUE

Whether the trial court erred in declaring the legal services contract between the Board of County Commissioners and Bogue and Bogue void because the Board exceeded its legal authority.

DECISION

Board’s Authority to Contract for Legal Services

[¶ 5.] The initial question for our consideration is to what extent the Board has authority to contract for legal services for civil matters.

Board’s Authority to Hire Lawyers in Certain Circumstances

[¶ 6.] There is no dispute that the Board is authorized to hire attorneys in certain circumstances specified by law. South Dakota law authorizes the Board to hire attorneys in criminal and civil cases in which the defendant or opposite party has more than one attorney and in civil and administrative cases outside the county if the county or a county official is a party. SDCL 7-16-6 provides:

In all criminal cases and in civil cases if the county is a party, if two or more attorneys are employed by the defendant in a criminal case or by the opposite party in civil cases the board of county commissioners may employ counsel to assist the states attorney in the trial of the cases at the compensation that is agreed upon between the board and counsel. In civil cases or administrative proceedings outside the county if the county or any county officers are named as parties, the board of county commissioners or county officers, if bringing suit in their official capacities or if sued in their individual or official capacities, may employ the county’s state’s attorney, deputy state’s attorney, limited deputy state’s attorney or any firm, association or corporation with whom the state’s attorney, deputy state’s attorney or limited deputy state’s attorney is affiliated, to prosecute or defend the actions, and compensation in addition to the state’s attorney’s salary may be paid for the legal services.

(Emphasis added). While this statute gives the Board express authority to hire an attorney in certain circumstances, the Board’s authority must be determined in conjunction with the state’s attorney’s responsibilities. The state’s attorney’s duties are set forth by statute.

State’s Attorney’s Duty to Represent County in Court

[¶ 7.] The duties of a state’s attorney are addressed at SDCL Chapter 7-16. The law requires the state’s attorney to “prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party.” SDCL 7-16-9. The statute provides as follows:

The state’s attorney shall appear in all courts of his county and prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party. No state’s attorney is required to appear in courts outside his county to prosecute and defend on behalf of the state or his county, any action or proceeding, civil or criminal, in which the state or county is interested or a party, except as required under § 7-16-15. If a part-time state’s attorney appears in courts outside his county or in federal courts to represent the state or his county, he may receive extra compensation for the legal services pursuant to § 7-16-6.

(Emphasis added). Through this statute the legislature established that only the state’s attorney can represent the county in civil and criminal actions or proceedings in a court within the county. Consequently, only the state’s attorney can represent Corson County in court in a civil action in Corson County. A fair reading of SDCL chapter 7-16 does not give the Board authority to hire a lawyer to displace the state’s attorney from the duties solely designated to him.

State’s Attorney’s Duty to Give Legal Opinions and Advice to County

[¶ 8.] The law also requires a state’s attorney to give opinions and advice to the county without fee, if requested by the county. SDCL 7-16-8. The law provides:

The state’s attorney shall give opinions and advice without fee to the board of county commissioners and other civil officers of his county, if requested by the board or officers, upon all matters in which the county is interested or relating to the official duties of the board or officers. However, a part-time state’s attorney may receive a fee in addition to the state’s attorney’s salary for legal services rendered pursuant to contract in behalf of the county or county officers' in civil cases and administrative proceedings outside the county, pursuant to § 7-16-6 or to a board or commission acting pursuant to chapter 46A-10A.

Id. The plain meaning of the statute requires a state’s attorney to give a county legal advice without charge, in those instances when the board or officers request such advice. The statute leaves the request for advice and opinions to the discretion of the board. The language of the statute implies that a county’s use of the state’s attorney for advice and opinions is not exclusive, thus leaving it within the discretion of the board to hire an attorney other than the state’s attorney for such matters.

Board’s Authority to Retain Counsel for Legal Advice

[¶ 9.] In support of its assertion that it has authority to hire outside counsel, the Board points to SDCL 7-8-20, which enumerates the powers of county commissioners and provides in part:

In addition to others specified by law, the board of county commissioners shall have power:
(1) To institute and prosecute civil actions in the name of the county, for and on behalf of the county.

Id. We have already recognized that a board’s authority is limited by statute and must be considered in conjunction with the state’s attorney’s duties. However, we also recognize that there may be situations where a board may want its own attorney. For example, a board may be faced with extensive and complicated legal questions that may arise from a county’s day-to-day work and these questions may be beyond a full or part-time state’s attorney’s expertise. Time constraints of a part-time state’s attorney could also create problems for a board. Disagreement and conflict between a board and the state’s attorney potentially could arise. In fact, citizens may request a state’s attorney to bring an action directly against a board, consequently causing a conflict of interest for the state’s attorney. SDCL 7-16-14.

[¶ 10.] We acknowledged in Grant County v. Jones that there may be circumstances when it is prudent for a board of county commissioners to hire legal assistance for the state’s attorney, and the legislature so recognized. 43 S.D. 6, 9-10, 177 N.W. 121, 122 (1920). We said: “Regardless of the ability of [the state’s attorney], ... commissioners would have been remiss in their duty to [the county] if they had not taken action to retain the services of those familiar with this mass of litigation.” Id. at 10,177 N.W. at 122-123. We did, however, also recognize the limitation that it would be improper to “attempt[ ] in any manner to displace the state’s attorney, [rather than] merely [ ] providing him with assistance.” Id. at 9, 177 N.W. at 122. Today, we further acknowledge that the legislature left discretion with the board of county commissioners to seek civil legal advice and opinions from their own attorney.

[¶ 11.] The statutes defining the state’s attorney’s duties and the statutes defining the Board’s authority can and must be read in harmony. The Board retains discretion to initiate or defend suits, but its discretion in choosing the attorney to work for them is limited by the duties statutorily assigned to the state’s attorney. The Board has no legal authority to replace the state’s attorney with another attorney except as specifically permitted by the statutes. This in no way interferes with the Board’s ability to defend or initiate suits, and it protects the electorate from having its vote for state’s attorney rendered meaningless by the Board. Whether or not hiring its own attorney is prudent or fiscally responsible is for the Board to decide, since its members must stand for election and answer to the citizens of the county.

[¶ 12.] We therefore conclude that the law requires the state’s attorney to represent the county in civil and criminal actions and proceedings within Corson County. Nevertheless, the Board has authority to contract for legal services (1) for criminal and civil cases with more than one lawyer in opposition, (2) for representation in counties other than Corson County or in federal and tribal courts, and (3) for legal advice and opinions to the Board.

[¶ 13.] The trial court determined that the contract needed to be reformed or canceled because the Board “was without legal authority to supplant the duly elected States Attorney of Corson County and substitute Bogue to provide ‘all civil representation as may be requested’ concerning Corson County.” The trial court was partially correct in that the Board does not have authority to displace the state’s attorney and substitute its own attorney for “all” civil litigation. The trial court, however, failed to acknowledge that the above contract clause also included limiting language in that Bogue was to “be responsible for performing all civil representation regarding the County as may be requested, in state, federal and tribal courts, as set forth in Chpt 7-16.” (Emphasis added). It is not clear from this language whether the services to be provided under the contract are limited to those which we have determined the County is allowed to contract for under SDCL Chapter 7-16. On the one hand, it may be a contract for “all civil representation”, which would be void in whole or in part as beyond the Board’s authority because it displaces the duly elected state’s attorney. On the other hand, the contract may be limited to only such representation as the Board may request pursuant to SDCL Chapter 7-16, which would be a valid contract. For this reason, the contract is ambiguous and is not susceptible to a four-corner’s interpretation.

[¶ 14.] The case was submitted to the trial court on bare bones stipulated facts. Both parties requested the court to decide the case based upon the language of the contract and the stipulated facts. However, the stipulated facts presented to the trial court do not answer the dispositive question of displacement. While the trial court correctly entered a conclusion of law (denominated as a finding of fact) that the contract could not “supplant” the state’s attorney, a finding that such displacement was intended by the ambiguous contract is not supported by further findings concerning the intent of the parties or the subsequent application of the contract.

[¶ 15.] In its findings of fact, the trial court generally found that the contract “addresses all civil legal representation and is not limited to the areas outside Corson County where the State’s Attorney has opted not to represent the county as set forth in, SDCL 7-16-9.” The court evidently drew this finding from the language of the contract, since it is not supported by the limited record created for the trial court. The Board conceded at oral argument that there is no evidence in the record, one way or the other, on displacement. Simply stated, there was insufficient evidence in the record from which the trial court could determine the extent of civil legal representation intended by the ambiguous contract. The matter needs to be remanded for the trial court to take additional evidence in light of this opinion. If the intent of the Board is to contract only for those services authorized under the law, it is a valid contract. See supra ¶ 12. If the intent and application of the contract is to displace the states attorney, all or portions of the contract may be void.

Eligibility of State’s Attorney

[¶ 16.] This would end the consideration of this case but for information that became apparent to this Court as part of the appeal. Although the matter was not argued, briefed, or presented to the trial court or this Court, we find it necessary to address it. The matter is the eligibility of the state’s attorney. The stipulated facts acknowledge that Hanks was on the Supreme Court of the Standing Rock Appellate Court. SDCL 7-16-18 provides: “No state’s attorney, while in office, is eligible to hold any judicial office.” This fact calls into question Hanks’ status as a state’s attorney. Because we are unable to determine whether a violation of SDCL 7-16-18 disqualified Hanks from serving as state’s attorney or had some other legal effect, upon remand the circuit court should hold further proceedings to determine the legal effects of any violation of this law by Hanks.

Conclusion

[¶ 17.] We reverse the trial court’s decision and remand for further evidence regarding the nature of the legal services contemplated by the Board in order to determine the legality of the legal services contract. We also direct the trial court to determine the effects of Hank’s judicial office on both his status as a state’s attorney and the legality of the legal services contract.

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

[¶ 19.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 20.] I dissent because it is clear to me that the Board was attempting an end run around the electorate of Corson County by retaining an attorney of its own choosing to perform duties statutorily assigned to the state’s attorney.

[¶21.] The majority opinion makes much of the fact that the contract contains a general reference to the set of statutes governing state’s attorneys and thereby concludes that “there was insufficient evidence in the record from which the trial court could determine the extent of civil legal representation intended by the ambiguous contract.” I disagree because the contract is anything but ambiguous.

[¶ 22.] The Board has consistently argued that state law neither restricts nor limits its ability to hire additional attorneys. The contract provides that Bogue would supply “all civil representation regarding the County as may be requested, in state, federal and tribal courts[.]” (emphasis added). The contract does not distinguish between cases wherein the duly elected state’s attorney is capable of representing the county and those in which he is not. The contract also failed to distinguish between cases venued within the county, and those located outside the county; a distinction clearly made by the Legislature. Furthermore, there is no evidence in the record to support the majority’s apparent position that the one-year contract represents a $25,000 retainer to Bo-gue for the limited purpose of providing additional legal “advice” to the Board if requested, and for representing the county in the event that it becomes involved in complicated litigation or the action is ven-ued outside of Corson County. The intent of the contract is clear, the Board attempted to displace Hanks by entering into a $25,000 contract with an unelected attorney to perform the same or similar functions as the duly elected state’s attorney. We should affirm the trial court in all respects.

[¶ 23.] Both the Board and the majority opinion rely on Grant County v. Jones as supporting authority. However, this case is distinguishable: a retiring state’s attorney was retained as counsel in order to represent the county in pending litigation. Grant Comity, 43 S.D. at 8-10, 177 N.W. at 122. The new state’s attorney attended the trials himself yet did not object to the representation until after the conclusion of the litigation when he attempted to recover the moneys paid to the retired state’s attorney for his legal services. Id. This Court held that since the new state’s attorney failed to object to the representation, he constructively consented to the representation. Id. Here, Bo-gue’s representation is not for the limited purpose of representing the County in a specific legal matter, rather it is for “all civil representation regarding the County as may be requested, in state, federal and tribal courts[.]” There is no question that Hanks is objecting to the representation.

[¶ 24.] The majority opinion, on its own, calls into question Hanks status as a state’s attorney. However, since Hanks has not been disqualified as Corson County State’s Attorney and the County has not requested Hanks to be judicially disqualified on all civil matters, the County has waived these arguments. State v. Mesa, 2004 SD 68, ¶ 15, 681 N.W.2d 84, 87 (“Failure to raise an issue before the trial court can constitute waiver of the issue.”); State v. Dufault, 2001 SD 66, ¶7, 628 N.W.2d 755, 757 (“Issues not advanced at trial cannot ordinarily be raised for the first time on appeal.”).

[¶25.] In fact, this matter has been stipulated away by the county. A stipulation dated May 5, 2003 between the parties provided in part:

1. Curtis W. Hanks was elected States Attorney for Corson County, South Dakota in [the] 2000 general election.
2. Curtis W. Hanks currently serves as Associate Justice on the Standing Rock Tribal Supreme Court.
3. Corson County, South Dakota is regarded as partially being within the exterior boundaries of the Standing Rock Indian Reservation.

Exhibit 1. Another stipulation by the parties of the same date provided in part as follows:

1. Curtis W. Hanks has not been disqualified as Corson County States Attorney, nor has the County requested Curtis W. Hanks be judicially disqualified from representing Corson County, South Dakota on civil matters.

Exhibit 3. Despite these stipulations, the majority opinion, on its own, raises the matter of eligibility under SDCL 7-16-18 which was not argued, briefed, or presented to the trial court or this Court. So much for the honored principle that we will not seek reasons to reverse.

[¶ 26.] For all of these reasons, I would affirm the circuit court’s holding that the County lacked legal authority under these circumstances to enter into the contract for these services and therefore the contract is void.

       SDCL 7-16-15 addresses situations where a change of venue occurs.


source: Caselaw Access Project

author: KONENKAMP, Justice. ZINTER, Justice

license: Public Domain

text:
    2005 SD 37
    The DEPARTMENT OF SOCIAL SERVICES OF THE STATE of South Dakota, ex rel Julienne C. WRIGHT, Plaintiff and Appellant, v. Bret J. BYER, Defendant and Appellee.
    No. 22609.
    Supreme Court of South Dakota.
    Order Granting Rehearing on May 7, 2004.
    Argued on Rehearing on Jan. 12, 2005.
    Decided March 16, 2005.
    Lawrence E. Long, Attorney General, David L. Braun, Special Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant State.
    Donald M. McCarty of McCann, Rib-stein, Hogan & McCarty, Brookings, South Dakota, Attorneys for defendant and ap-pellee Byer.
    Terry D. Wieczorek, Brookings, South Dakota, Attorney for Child K.S.
   KONENKAMP, Justice.

[¶ 1.] In Department of Social Services (DSS) ex rel. Wright v. Byer, 2004 SD 41, 678 N.W.2d 586 (Byer I), we declared the sixty day statute of limitations in SDCL 25-8-59 to be unconstitutional. Thereafter, DSS sought a rehearing, asserting that the decision in Byer I would result in a loss or reduction of substantial federal funds for child support enforcement because the portion of the statute declared unconstitutional was part of a federal mandate. DSS asks that we remand this case so that it can proceed against both the presumed father and the putative father. DSS believes that if we hold in abeyance our decision on the constitutionality of the statute, a judgment of support against the presumed father will make the issue moot. DSS also seeks to proceed with the blood test of the putative father so that if it does not succeed in its case against the presumed father, it can proceed against the putative father and if the case returns to this Court, we will have a complete record before deciding on the constitutionality of the statute. We agree, and accordingly remand to the circuit court for further proceedings.

Background

[¶ 2.] We briefly restate the facts from Byer I. Toward the end of their marriage, Julienne C. Wright and Steven Stein became estranged, and Wright moved out of the home. From August to October 1998, she lived with defendant, Bret J. Byer. On February 4, 1999, Wright and Stein divorced. The divorce decree incorporated their stipulation, which provided for joint legal and physical custody of their two sons. The decree also ordered that because custody was to be shared equally neither party would pay any child support. In addition, the stipulation provided: “considering [Wright] is currently pregnant, the parties agree that a paternity test will be performed after the child is born. If [Stein] is determined [to be] the biological father of the child, the visitation schedule for the minor child will be the same schedule as for the other children, as set forth in this provision....” A girl, K.S., was born on May 2, 1999. Stein was listed as the father on her birth certificate, and she was given Stein’s name. Neither Wright nor Stein brought an action to determine paternity within sixty days of the child’s birth.

[¶ 3.] Wright received public assistance for K.S. from the State of South Dakota. Consequently, almost three years later, on March 9, 2002, a paternity action was commenced by DSS, seeking to have defendant, Bret J. Byer, declared KS.’s father and requesting an order for child support. In her affidavit, Wright alleged that while she was still married to Stein, she was residing with Byer when K.S. was conceived. She asserted that the issue of Steven Stein’s paternity had been disputed since the divorce, but recent paternity testing had excluded him as the biological father of K.S. Relying on In re Support Obligation of Do Rego, 2001 SD 1, 620 N.W.2d 770, the circuit court granted summary judgment dismissing the action because it was brought after the sixty day limitations period expired.

[¶ 4.] Under his divorce decree, Stein is not presently obligated to pay child support for K.S. From the sparse record, we cannot determine if any effort has been made to modify Stein’s decree to provide for the support of his presumed daughter, K.S. There is only the stipulation, with its tentative recognition that he may not be KS.’s father.

Analysis and Decision

[¶ 5.] On rehearing, we examine this case under the same standard of review we used in Byer I. At issue here are two statutes. The first is SDCL 25-8-57, providing that “[a]ny child born in wedlock, or born within ten months after dissolution of the marriage, is presumed legitimate to that marriage even if the marriage is subsequently declared to be null and void, or subsequently dissolved by divorce.” The rebuttable presumption in § 25-8-57 “can only be disputed by the husband or wife, or a descendant of one or both of them.” Id. The second statute is SDCL 25-8-59:

Any action contesting a rebuttable presumption of paternity as established by §§ 25-8-50 to 25-8-58, inclusive, shall be commenced in circuit court either sixty days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child including proceedings to establish a support obligation in accordance with § 25-8-52, whichever occurs earlier, except in cases where there are allegations of fraud, duress, or material mistake of fact. In cases involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within three years after the creation of any presumption. The burden of proof shall be upon the moving party and the payment of child support, or any other legal responsibilities of the parties, may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party.

Id. Byer, the putative father, successfully raised the presumption of legitimacy under § 25-8-57 and the sixty day limitations period in § 25-8-59. In so doing, he avoided an obligation to take a blood test and a possible consequent obligation to support K.S. In a recent paternity test, the former husband, Stein, was shown not to be the father of K.S. He is not required to pay support for the child under the stipulated divorce agreement.

[¶ 6.] DSS, on behalf of Julienne C. Wright, the attorney and guardian ad li-tem for K.S., and Byer all maintain that the sixty day limitations period in SDCL 25-8-59 is constitutional. Nonetheless, from the sparse record, we cannot determine whether K.S. will receive support from either the presumed father, Stein, or the putative father, Byer. All that can be garnered from the record is that DSS provided K.S. and her mother public assistance, that the presumed father, Stein, was not involved in these proceedings, that Stein and Wright’s divorce decree provides that Stein is not obligated to pay child support, that Stein has been ruled out as HS.’s biological father, and that Byer has not been required to take a paternity test. Such minimal information serves us poorly when the ultimate inquiry concerns the well-being and best interests of a child.

[¶ 7.] To avoid a ruling on the constitutionality of SDCL 25-8-59, DSS asks that we remand to the circuit court so that it can proceed against both the presumed father and the putative father. DSS believes that if we hold in abeyance our decision on the constitutionality of the statute, it can obtain a judgment of support against the presumed father and the constitutionality of the statute would become moot. DSS also seeks to proceed with the blood test of the putative father so that if it does not succeed in its case against the presumed father, it can proceed against the putative father, and if the case returns to this Court, we will have a complete record before deciding on the constitutionality of the statute. On remand, vital fact questions that this Court cannot answer at this point will be addressed by the circuit court.

[¶ 8J Consequently, we remand this matter so that DSS can proceed in accordance with this opinion. See generally Davis v. Davis, 1999 SD 116, ¶ 8, 598 N.W.2d 921, 922; Dixon v. Dixon, 423 N.W.2d 507, 509-10 (S.D.1988); Putnam Ranches, Inc. v. O’Neill Prod. Credit Assoc., 271 N.W.2d 856, 858 (1978) (remanding so that the “parties should have a chance to develop a more complete record on convenience to witnesses and the promotion of the ends of justice”). The circuit court should require the putative father, Byer, to undergo a paternity test. We suspend the question whether SDCL 25-8-59 is unconstitutional. We will defer judgment on this question until the facts are fully developed. Since we previously reversed this matter in Byer I, we now remand for the circuit court to make further factual determinations as noted above.

[¶ 9.] Remanded.

[¶ 10.] SABERS and MEIERHENRY, Justices, concur.

[¶ 11.] GILBERTSON, Chief Justice and ZINTER, Justice, dissent.

ZINTER, Justice

(dissenting).

[¶ 12.] Mother, through the Department of Social Services (DSS), is seeking to establish paternity and obtain child support from a putative father. Although the statute of limitations bars the action, the Court permits “DSS ... to proceed with the blood test of the putative father so that if it does not succeed in its ease against the presumed father, it can proceed against the putative father....” Supra ¶ 7. In other words, even though the statute of limitations bars this action against the putative father, see SDCL 25-8-59 and SDCL 25-8-57, the Court has granted DSS’s request to remand this matter and “proceed against both the presumed father and the putative father.” Supra ¶ 7. Because the Court’s disposition is expressly prohibited by In re Support Obligation of Do Rego, 2001 SD 1, 620 N.W.2d 770, I respectfully dissent.

[¶ 13.] In Do Rego, this Court unequivocally held that even though paternity testing effectively rebuts a presumption of legitimacy with respect to a presumed father, an action against a putative father may not proceed if the statute of limitations in SDCL 25-8-59 has expired. Id. ¶ 8. Just as in Do Rego, the statute of limitations expired in this case before DSS commenced this action on Mother’s behalf. Therefore, because Mother “did not rebut the presumption of legitimacy within the allowed period of time, she is precluded from challenging it now.” Id. ¶ 9.

[¶ 14.] Furthermore, under our unequivocal precedent, blood testing may not be considered in a statutorily barred action. Do Rego clearly held that “evidence [i.e. blood testing] effectively rebutting] the presumption of legitimacy will not be reached [if] the statute of limitation to contest the presumption has expired.” Id. ¶8. Nevertheless, in the current case the Court also permits further blood testing.

[¶ 15.] The Court accedes to this rather remarkable request by DSS to proceed against a putative father on a barred action so that “vital fact questions” concerning the constitutional issue can be addressed by the circuit court. Supra ¶ 7. This reasoning is flawed because the questions now before us are only questions of law; i.e. whether a statute of limitations bars this action, and if so, whether that statute of limitations is constitutional. Thus, there is no need to develop further “vital fact questions.” More fundamentally, we simply have no judicial authority to order that a statutorily barred action proceed because we hope that further proceedings may develop facts that could shed light on a constitutional issue.

[¶ 16.] In the final analysis, unless this Court holds that the statute of limitations is inapplicable, or unless this Court overrules Do Rego, we have no authority to decline to follow the statute of limitations in SDCL 25-8-59. Because the Court has neither invalidated SDCL 25-8-59 nor overruled Do Rego, I dissent.

[¶ 17.] GILBERTSON, Chief Justice, joins this dissent.

      . See supra ¶ 5.

      . The presumption of legitimacy arose on May 2, 1999, the date that K.S. was born. Because there was no allegation of fraud, duress, or material mistake of fact, the presumption of legitimacy could only be contested within sixty days of May 2, 1999. See SDCL 25-8-59. Although Mother and the presumed father (Stein) were aware of the pregnancy and putative father (Byer) at the time of the divorce, and although Mother had agreed to perform genetic testing after the child was born, Mother took no action to determine paternity until March 9, 2002, almost three years after the birth of the child and after the statute of limitations had expired.

      .The claimed "vital questions" of fact are whether DSS can obtain a judgment against the presumed father, and whether the putative father can be proven to be the biological father through blood testing. However, the first question is a matter of law and the second is irrelevant to the constitutional question.


author: ANDERSON, LEE D„ Circuit Judge.

text:
    2005 SD 39
    Jannelle CAIN, Plaintiff and Appellant, v. FORTIS INSURANCE COMPANY, Defendant and Appellee.
    No. 23166.
    Supreme Court of South Dakota.
    Argued Nov. 17, 2004.
    Decided March 16, 2005.

      N. Dean Nasser, Jr., Nasser Law Offices, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Kristine Kreiter O’Connell, Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and ap-pellee.
   ANDERSON, LEE D„ Circuit Judge.

[¶ 1.] Jannelle Cain (Cain) appeals the circuit court’s holding that Fortis Insurance Company (Fortis) did not breach its contract with Cain because gastric bypass surgery was excluded from coverage under her health insurance policy. We affirm.

FACTS

[¶ 2.] Cain was diagnosed as morbidly obese and suffered from high blood pressure and degenerative joint disease. When other weight loss options were unsuccessful, Cain consulted a surgeon, Dr. O’Brien, about undergoing a treatment known as gastroplasty or gastric bypass surgery. Dr. O’Brien sent a preauthorization request letter to Fortis, Cain’s insurance company. Cain’s insurance policy contained a weight treatment exclusion stating, “You are not covered for any treatment or regime, medical or surgical, for purpose of controlling your weight or for the treatment of obesity.” Based on this language, Fortis determined that Cain was not entitled to coverage.

[¶ 3.] Despite the preauthorization denial, Cain underwent gastroplasty on November 19, 2001. The cost of the procedure was $20,329.87. Cain submitted a claim to Fortis for the cost of the gastric bypass surgery. Fortis again denied coverage for the surgery, indicating that any treatment for weight control or obesity was not a covered benefit. Cain asserted that the procedure was a medically necessary treatment for her musculoskeletal and cardiovascular problems and should be covered under the insurance policy.

[¶ 4.] The trial court determined that although the surgery was medically necessary to treat the conditions complicated by her weight, the terms of the insurance policy excluded coverage. Accordingly, the court held that Fortis did not breach its contract with Cain as it was not obligated to provide insurance coverage for the gastric bypass procedure. After a bench trial on December 30, 2003, the court entered judgment in favor of Fortis and awarded $1,037.28 in costs and disbursements.

[¶ 5.] Cain asserts the following issues on appeal:

Whether Cain’s gastric bypass surgery was covered under the Fortis policy. Whether it was unlawful discrimination to deny Cain necessary surgical care for a disease.
Whether the efficient proximate cause doctrine is applicable to health insurance policies.
Whether the trial court committed reversible error in refusing to consider Cain’ offers of proof regarding insurance coverage for different medical treatments, and payment for gastric bypass surgery under other contracts.
Whether the trial court abused its discretion in entering judgment for the taxation of costs.

STANDARD OF REVIEW

[¶ 6.] When interpreting insurance contracts, we have uniformly held them reviewable as a matter of law under the de novo standard. De Smet Ins. Co. v. Gibson, 1996 SD 102, ¶ 5, 552 N.W.2d 98, 99; Economic Aero Club, Inc. v. Avemco Ins. Co., 540 N.W.2d 644, 645 (S.D.1995); State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994). This includes determining whether an insurance contract is ambiguous. Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 616 (S.D.1994).

[¶ 7.] The decision to admit or refuse evidence is reviewed under the abuse of discretion standard. State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353. The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).

[¶ 8.] We also review a trial court’s rulings on the allowance or disallowance of costs and attorney fees under an abuse of discretion standard. Stratmeyer v. Engberg, 2002 SD 91, ¶ 12, 649 N.W.2d 921, 925 (citing Eccleston v. State Farm Mut. Auto. Ins. Co., 1998 SD 116, ¶ 20, 587 N.W.2d 580, 583; Fullmer v. State Farm Ins. Co., 498 N.W.2d 357, 363 (S.D.1993)).

ANALYSIS AND DECISION

ISSUE ONE

[¶ 9.] Whether Cain’s gastric bypass surgery was covered under the Fortis policy.

[¶ 10.] Cain had an individual South Dakota Standard policy of health insurance with Fortis. The Division of Insurance regulates the Standard policy benefits and exceptions. One allowable exception or limitation under South Dakota’s regulations is for weight modification. ARSD 20:06:39:26(9) permits a coverage limitation for:

Weight modification, including services, supplies, or treatment related to organized programs, treatment for obesity by diet drugs, any form of surgery or complications of surgery, and any exercise program or equipment^]

The Fortis policy included such an exclusion for weight modification, stating:

Weight Control. You are not covered for any treatment or regimen, medical or surgical, for the purpose of controlling your weight or for the treatment of obesity.

[¶ 11.] Cain argues that the weight exclusion in the Fortis policy varied materially from the exclusions permitted in South Dakota in the Standard policy. In comparing the Fortis policy exclusion with the coverage limitations allowed under ARSD 20:06:39:26(9), we find that the exclusion was clearly in conformity with what is permitted under the South Dakota regulations.

[¶ 12.] Cain also contends that the For-tis insurance policy language was ambiguous. In its findings of fact and conclusions of law, the trial court determined that the purpose of Cain’s gastric bypass surgical procedure was for the treatment of morbid obesity and that successful gastric bypass surgery was intended to produce weight loss. An anticipated result of the surgery and weight loss would have been improvement in Cain’s medical problems which included high blood pressure and musculo-skeletal pain.

[¶ 13.] The trial court held that the provisions of the Fortis policy were not ambiguous. It also concluded that the policy specifically excluded surgery undertaken for the purpose of treatment of obesity. Therefore, the trial court ruled the denial of coverage for the gastric bypass surgery was proper under the policy.

[¶ 14.] Cain argues that ambiguity existed in the Fortis policy because it failed to distinguish between or to define either “obesity” or “morbid obesity.” Since Cain was diagnosed with morbid obesity rather than simple obesity, she asserts that the obesity treatment exclusion did not apply.

[¶ 15.]Recently, the District of Columbia Superior Court was confronted with the very same issue of whether the medical condition of obesity encompasses the medical condition of morbid obesity. Flecha De Lima v. Int’l. Med. Group, Inc., No. 01CA6866, 2004 WL 2745654 at *4 (D.C.Super., Nov. 29, 2004). The Flecha De Lima court acknowledged, “the modification of the noun ‘obesity’ with the adjective ‘morbid’ indicates, for purposes of ordinary speech, that ‘morbid obesity’ is a type of ‘obesity,’ just as ‘rheumatoid arthritis’ is naturally understood to be a type of ‘arthritis,’ and a ‘migraine headache’ is naturally understood to be a type of ‘headache.’ ” Id.

[¶ 16.]This Court recognizes that descriptive terms such as “severe,” “extreme,” and “morbid” are often used to diagnose an individual’s level of obesity. Accordingly, we find that the broad term obesity does include reference to more specific sub-categories such as morbid obesity.

[¶ 17.]Having reviewed the contract, we agree with the trial court that the policy was clear and unambiguous and that the gastric bypass surgical procedure was excluded under the policy. Although Cain was entitled to medically necessary services under the contract, every person’s benefits under the standard policy were subject to the weight control treatment exclusion. It was irrelevant whether the gastric bypass was medically necessary treatment for her high blood pressure and musculoskeletal pain because the treatment was specifically excluded as a benefit not covered. “[A]n ambiguity is not of itself created simply because the parties differ as to the interpretation of the contract.” Johnson v. Johnson, 291 N.W.2d 776, 778-79 (S.D.1980) (citations omitted). An unambiguous policy will be construed according to its plain and ordinary meaning, and will not be enlarged or diminished by judicial interpretation. Am. Family Mut. Ins. Co. v. Elliot, 523 N.W.2d 100, 102 (S.D.1994). We conclude that the trial court did not err in construing the contract.

ISSUE TWO

[¶ 18.] Whether it was unlawful discrimination to deny Cain necessary surgical care for a disease.

[¶ 19.] Cain maintains that she suffered from a life-threatening health condition and was entitled to receive insurance coverage for medically necessary treatment. Cain states that other non-obese policyholders were covered for medically necessary treatment for hypertension and for severe degenerative joint disease. However, due to her morbid obesity, Cain was disqualified from having her blood pressure and joint problems controlled by gastric bypass surgery. She contends that it was a violation of SDCL 58-33-26 to provide her with different benefits because she suffered from morbid obesity.

[¶20.] SDCL 58-33-26 states in pertinent part:

No insurer shall make or permit any unfair discrimination between insureds or property having like insuring or risk characteristics, in the premium or rates charged for insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the insurance.

Fortis insists that all standard plan policy holders were subject to the exact same coverage and exclusions as provided by law.

[¶ 21.] Cain’s unlawful discrimination argument is not persuasive. “Discrimination” is defined as the “failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored.” Black’s Law Dictionary 467 (6th ed 1990). In this case, Cain has presented no evidence to suggest that she was denied surgical treatment for obesity while some favored class of persons was granted treatment for obesity. Therefore, we find that the Fortis policy did treat all policyholders the same. All individuals with a standard plan of insurance enjoyed the same coverage and exclusions mandated by South Dakota law.

[¶ 22.] Cain also raises ADA (Americans with Disabilities Act) and Title XIX claims for the first time in this appeal. Additionally, she claims that under SDCL 58-1-24, the discriminatory use of genetic information as a basis for exclusions is prohibited. Since these issues are raised for the first time on appeal, we need not consider them. State v. King, 400 N.W.2d 878, 880 (S.D.1987). For an appellate court to consider issues and make a decision on an incomplete record on questions raised before it for the first time would, in many instances, result in injustice, and for that reason courts ordinarily decline to review questions raised for the first time in the appellate court. Sharp v. Sharp, 422 N.W.2d 443, 445 (S.D.1988). This Court has often said that “[a]n issue not raised at the trial court level cannot be raised for the first time on appeal.” Action Mech., Inc. v. Deadwood Historic, 2002 SD 121, ¶ 50, 652 N.W.2d 742, 755.

ISSUE THREE

[¶ 23.] Whether the efficient proximate cause doctrine is applicable to health insurance policies.

[¶ 24.] Cain further claims that the doctrine of “efficient proximate cause” applied to permit coverage. Even if the gastric bypass surgery was excluded as a treatment for weight control, Cain insists that coverage should have still been afforded for hypertension and joint deterioration treatment as “efficient proximate causes” of her condition.

[¶ 25.] The doctrine of efficient proximate cause has been utilized in eases involving property and casualty insurance policies. It is applied “where two separate or distinct perils could have occurred independently of the other and caused damage.” Capitol Indem. Corp. v. Evolution, Inc., 293 F.Supp.2d 1067, 1072 (D.N.D.2003) (citing Pieper v. Commercial Under writers Ins., 59 Cal.App.4th 1008, 69 Cal.Rptr.2d 551, 557 (1997)). Although this doctrine is utilized in cases involving property and casualty policies, there is almost no case law to support its application to health insurance policies. See, e.g., Lummel v. National Fire Ins. Co. of Hartford, Conn., 50 S.D. 502, 210 N.W. 739 (1926) (applying the dominating efficient cause doctrine to an action on a fire policy covering truck which burned after going over embankment); Garvey v. State Farm, Fire and Casualty Co., 48 Cal.3d 395, 257 Cal.Rptr. 292, 770 P.2d 704 (1989) (discussing whether the included risk of negligent construction or the excluded risk of earth movement was the efficient proximate cause of the homeowner’s loss). Cain cites only one Indiana case which discusses the issue in relation to health insurance coverage.

[¶26.] In Rozek v. American Family Mut. Ins. Co., 512 N.E.2d 232 (Ind.Ct.App.1987), the trial court’s grant of summary judgment was reversed as the court noted that “ ‘which of the contributing causes is the efficient, dominant, proximate cause is a question to be submitted to the jury.’ ” Id. at 235 (quoting Nationwide Mutual Insurance Co. v. Neville, 434 N.E.2d 585, 591 (Ind.Ct.App.1982)). Rozek involved a health insurance policy exclusion for treatment of hypertension, its causes and complications. The central issue concerned whether removal of an adrenal gland tumor by surgery was an independent necessity where the gland was apparently the cause of hypertension in the patient. The Indiana court ruled that this issue involved an important factual determination which precluded the liberal use of summary judgment and held that “a discoverable, manifest or active, fundamental or basic cause of the hypertension is excludable under the policy, but a condition warranting independent corrective treatment is not.” Rozek, 512 N.E.2d at 236.

[¶ 27.] The issues in the Indiana case distinguish it from the one before us. The doctrine of “efficient, dominant, proximate cause” was not applicable to alter the unambiguous language of the Fortis policy which excluded any treatment for the purpose of controlling weight or for obesity. We conclude that no South Dakota cases or any other cases cited by Cain lead us to believe that the efficient proximate cause doctrine was applicable here.

ISSUE FOUR

[¶ 28.] Whether the trial court committed reversible error in refusing to consider Cain’s offers of proof regarding insurance coverage for different medical treatments, and payment for gastric bypass surgery under other contracts.

[¶ 29.] During trial, Cain first sought to introduce evidence concerning how insurance companies cover treatment for one medical condition, yet refuse payment for another set of symptoms. Next, Cain attempted to explore other health insurance policies issued by Fortis to insureds in other states. Cain asked whether Fortis had paid for gastric bypass surgery for other policyholders.

[¶ 30.] Fortis objected to Cain’s line of questioning as being irrelevant to both the treatment of obesity and to the Fortis insurance policy in South Dakota. The trial court sustained Fortis’ objections but permitted Cain to make offers of proof. The aforementioned offers of proof were received and rejected by the trial court as irrelevant. The court specifically ruled that other states’ insurance policies were not relevant because they were “creatures of statute” and South Dakota’s administrative rules delineate what can be included or excluded from a standard insurance policy in our state.

[¶ 31.] The trial court has broad discretion in admitting evidence. Grode v. Grode, 1996 SD 15, ¶ 16, 543 N.W.2d 795, 801 (citing Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989)). “Evidence which is not relevant is not admissible.” SDCL 19-12-2. A trial court’s evidentiary rulings are presumptively correct. Isaac v. State Farm Ins. Co., 522 N.W.2d 752, 762 (S.D.1994) (citing Opp v. Nieuwsma, 458 N.W.2d 352, 357 (S.D.1990)). This Court will only disturb decisions of the trial court regarding the admission of evidence if there is a clear abuse of discretion. Jurgensen v. Smith, 2000 SD 73, ¶ 18, 611 N.W.2d 439, 442. “An abuse of discretion has been defined as a decision that is not justified by, and is clearly against reason and evidence.” Id. We find no abuse of discretion in the trial courts rulings based on lack of relevancy.

ISSUE FIVE

[¶ 32.] Whether the trial court abused its discretion in entering judgment for the taxation of costs.

[¶ 33.] SDCL 15-6-54(d) requires that an application for costs and disbursements be made within thirty days of the entry of judgment. Failure to make timely application waives the right to such costs. Id. The procedure for objecting to the taxation of costs is also set forth in SDCL 15 — 6—54(d) which provides in part:

A party who objects to any part of the application shall serve and file his objections with the clerk of court in writing within ten days of the service of the application on him or he will be deemed to have agreed to the taxation of the costs and disbursements proposed. The written objections must be accompanied by a notice of hearing thereon and shall set forth in concise language the reasons why the costs should not be allowed, (emphasis added).

[¶ 34.] The record indicates that no objection was filed within the ten day period under SDCL 15-6-54(d). On February 5, 2004, Fortis served Cain with its application for taxation of costs. Eighteen days later, Cain served written objections to the taxation of costs upon Fortis. The written objections were not accompanied by a notice of hearing. The trial court held that the ten day deadline for objecting under SDCL 15—6—54(d) was mandatory. Thus, the court ruled that Cain was deemed to have agreed to the taxation proposed in the application. Judgment was entered for costs on April 16, 2004. The trial court did not err or abuse its discretion in ruling that Cain did not follow the mandatory ten day deadline and was, therefore, deemed to have agreed to the taxation of costs proposed.

[¶ 35.] Affirmed.

[¶ 36.] ANDERSON, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 37.] GILBERTSON, Chief Justice, KONENKAMP, ZINTER and MEIERHENRY, justices, concur.

      . Cain had an individual South Dakota Standard policy of health insurance with Fortis. The effective date of Cain’s policy was January 1, 1998. The policy was in effect at the time of the surgery.


author: SABERS, Justice.

text:
    2005 SD 36
    Floyd J. STANGA and Judy K. Stanga, Plaintiffs and Appellants, v. Larry HUSMAN and Vicki Husman, d/b/a Hurkimer Development, Defendants and Appellees.
    No. 23252.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 15, 2005.
    Decided March 16, 2005.

      Michael A. Henderson, Shawn M. Nichols of Cadwell, Sanford, Deibert & Garry, Sioux Palls, South Dakota Attorneys for plaintiffs and appellants.
    Ronald A. Parsons, Jr., of Johnson, Hei-depriem, Miner, Marlow and Janklow, Sioux Falls, South Dakota Attorneys for defendants and appellees.
   SABERS, Justice.

[¶ 1.] Floyd and Judy Stanga (Stanga) own a cabin on Lake Madison. Access to the property is provided via an easement across property owned by Larry and Vicki Husman (Husman). In 2000, Husman began to develop the property and partially relocated the access road. Stanga claims that Husman’s unilateral alteration of the road impedes access to his property. Stanga filed suit seeking a declaratory judgment regarding the parties’ respective rights. The trial court granted Husman’s motion for summary judgment. Stanga appeals and we affirm.

Facts

[¶ 2.] Stanga owns a lake lot that borders Lake Madison, which is located in Lake County. The property is located on the west end of Lake Madison in the area commonly known as “Marr’s Beach.” Stanga has a seasonal cabin on the property. Access to the Stanga property (the dominant tenement) from Highway 19 is provided via an easement across property owned by Husman (the servient tenement). The express easement, dated October 30, 1954, provides a perpetual easement for the purpose of ingress and egress to the land now owned by Stanga. The express easement fails to provide the exact dimensions or location of the easement and simply refers to the “existing road.”

[¶ 3.] At the time the easement was recorded, the “existing road” consisted of a one-lane path located on an old railroad right-of-way that ran from Highway 19 across a slough area to the property now owned by Stanga. The access road was not wide enough for two cars to pass side by side and, depending on the time of year and weather conditions, the road varied slightly from side to side. Eventually, a gravel road was constructed to provide better access. Over the next four decades, the placement and dimensions of the gravel road varied as improvements were made to it. Eventually it was widened to a two-lane road. It is unclear whether the improved gravel access road coincided with the original “existing road.”

[¶ 4.] In 2000, shortly after the servient tenement was purchased by Husman, the property was developed into a planned community called “Sunset Harbor.” The project includes several condominiums and townhouses, a clubhouse, and a swimming pool. As part of the development efforts, modifications to the access road were made in the spring of 2001. The road was partially relocated creating two new corners and then paved. The resulting altered route of the access road is the source of conflict between these two parties. Stanga asserts that Husman’s unilateral alteration of the access road is inconsistent with the recorded easement and unreasonably impedes access to his property.

[¶ 5.]- In June, 2003, Stanga filed an action seeking a declaratory judgment regarding the parties’ respective rights as to the easement. Both parties filed motions for summary judgment. Circuit Court Judge Tim Tucker granted Husman’s motion. Stanga appeals and we affirm.

Standard of Review

[¶ 6.] In reviewing a trial court’s order granting a motion for summary judgment, “[w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided.” Flugge v. Flugge, 2004 SD 76, ¶ 5, 681 N.W.2d 837, 839-40 (citing Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343). “We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party.” Id.

[¶ 7.] Whether the trial court erred in granting summary judgment , in favor of Husman.

[¶ 8.] Stanga argues that Husman was not entitled to unilaterally alter and relocate the easement. In the alternative, Stanga asserts that there are genuine issues of material fact.

[¶ 9.] The owners of a servient tenement are “entitled to make reasonable changes to the servient estate so long as they did not unreasonably interfere with the dominant tenement owners’ use of the easement.” (Emphasis in the original). Burkhart v. Lillehaug, 2003 SD 62, ¶ 11, 664 N.W.2d 41, 43 (citing 25 AmJur (2d) Easements & Licenses § 76 (2002)). The Restatement (Third) Property (Servitudes) § 4.8 (2000) provides in pertinent part:

Except where the location and dimensions are determined by instrument or circumstances surrounding creation of a servitude, they are determined as follows:
(3) Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not
(a) significantly lessen the utility of the easement;
(b) increase the burdens on the owner of the easement in its use and enjoyment; or
(c) frustrate the purpose for which the easement was created.

(Emphasis added).

[¶ 10.] Here, the original instrument establishing the easement does not provide the exact location or dimensions of the easement, nor does it specify the circumstances surrounding the easement’s creation. The only reference to location was to the “existing road.” Moreover, the recorded easement contained no express prohibition on relocation. Therefore, as the owner of the servient tenement, Hus-man is allowed to make unilateral modifications to the location of the easement, but only if those modifications are reasonable and do not significantly lessen the utility of the easement, increase the burdens on the owner of the dominant tenement, or frustrate the purpose for which the easement was created. Burkhart, 2003 SD 62, ¶ 11, 664 N.W.2d at 43; Restatement (Third) PROPERTY (Servitudes) § 4.8 (2000).

[¶ 11.] The changes Husman made have been at his own expense and for legitimate planning and development purposes. The plans were properly submitted to and approved by the Lake County Planning and Zoning Commission and the Lake County Commission. The access road has been significantly improved in that it is now a hard surface road, built according to standard engineering practices for municipal streets and developments. According to Husman’s engineer, the road is fully traversable by any vehicle that would normally travel a city street, including a standard 55-foot tractor/trailer. Additionally, lighting pedestals have been installed along the roadway and Husman intends to eventually install street lights so that the road will be fully illuminated from Highway 19 to Stanga’s property.

[¶ 12.] Stanga has failed to submit any affidavits or evidence to support his assertion that the improved roadway impedes access to his property. To the contrary, the depositions of both Floyd and Judy Stanga indicate that they are not being denied access to their property. Furthermore, when pressed in his deposition as to how he is inconvenienced by the new access road, Mr. Stanga testified in part:

Q: Other than your desire to have this road straight for the reasons you’ve said, what other inconveniences have you suffered because of this road and are suffering today?
A: The payment to my attorney.

(Emphasis added).

[¶ 13.] SDCL 15-6-56(e) provides in pertinent part:

When a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in § 15-6-56, must set forth specific facts showing that there is a genuine issue for trial.

See also Gehrts v. Batteen, 2001 SD 10, ¶ 12, 620 N.W.2d 775, 779 (“[P]roof of a mere possibility is never sufficient to establish a fact.”); Estate of Elliott v. A & B Welding Supply Company, Inc., 1999 SD 57, ¶ 16, 594 N.W.2d 707, 710 (“When challenging a summary judgment, the nonmov-ing party ‘must substantiate his allegations with sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy.’ ”).

[¶ 14.] Husmán has shown that the modifications to the easement were reasonable. Furthermore, Stanga has not set forth specific facts through affidavits or other credible evidence to support his allegations that there are genuine issues of material fact whether the modifications lessen the utility of the easement, increase the burdens on him in the use and enjoyment of the easement, or frustrate the purpose for which the easement was created.

[¶ 15.] Therefore, it has not been shown that the trial court erred in granting Husman’s motion for summary judgment and we affirm.

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

      . The record indicates Mr. Stanga was personally notified of the proposed planning and zoning changes regarding Sunset Harbor development and attended at least one Lake County Planning and Zoning Commission meeting in which the proposed changes were discussed. The only concern Mr. Stanga raised regarding the proposed roadway plat was whether the bridge would be designed and constructed in such a way as to allow all types of vehicles to cross it. After being assured that this would be the case, he indicated no further objections.

      . This was determined by Jon Brown, a professional engineer, who submitted an affidavit in support of Husman. Stanga nonetheless asserts that due to the turns in the access road, no one would be able to get a 40-foot trailer to his property. He bases this assertion on an alleged comment that his son, who is a contractor, made to him. However, Stanga’s son was never deposed nor did Stan-ga offer any affidavits or other credible evidence as to these contentions. Furthermore, when asked if either he or his son ever attempted to take a 40-foot trailer across the access road, Stanga responded in the negative.


author: LARSON, Justice.

text:
    Carol WALTHART, Appellant, v. BOARD OF DIRECTORS OF EDGE-WOOD-COLESBURG COMMUNITY SCHOOL DISTRICT, Appellee.
    No. 04-0177.
    Supreme Court of Iowa.
    April 8, 2005.
    See also 667 N.W.2d 873.

      William R. Unger, Des Moines, for appellant.
    Brian L. Gruhn of Gruhn Law Firm, P.C., Cedar Rapids, for appellee.
   LARSON, Justice.

Carol Walthart had been a teacher for eighteen years in the Edgewood-Coles-burg Community School District (EDCO) when the school board terminated her contract under Iowa Code chapter 279 (1999). Following her appeal to an adjudicator, the district court upheld the termination, and she appealed. We affirm.

I. Facts and Prior Proceedings.

In September 2000 students from the EDCO school district gathered in a hay field on property owned by Carol Walthart and her husband, Dennis. The Waltharts’ son, Mark (a senior at EDCO), was there, and he and several other students were drinking alcohol. Late that night, the beer ran out, so four students left by car to buy more. On their way to town, the driver lost control and hit a tree, killing all four of the students. Investigation later determined that the driver had an alcohol blood level of .380, more than three times the legal limit. In October 2000 the EDCO superintendent gave Walthart written notice under Iowa Code section 279.15 that he was recommending her contract with the school district be terminated, prior to the end of the current contract year, for just cause. See Iowa Code § 279.27. He gave the following reasons:

• Unprofessional conduct in allowing students to use teacher’s property for a party where alcohol was illegally used by students.
• Failure to effectively monitor a party on teacher’s property wherein student alcohol consumption contributed to the death of several students.
• Failure to protect the safety and welfare of students.
• Inability to be effective as a teacher.
• Poor role model.
• Poor and ineffective leadership.

Walthart requested a private hearing under Iowa Code sections 279.15 and .16, and the board held the hearing on November 3 and 4, 2000. The board’s deliberation continued at a special session on November 13, 2000. At the close of that meeting, a roll call vote was taken, and the board voted unanimously to terminate Walthart’s contract.

Following the board’s vote to terminate her, Walthart filed a notice of appeal to an adjudicator under Iowa Code section 279.17. She claimed the termination violated statutory and constitutional provisions; was in excess of the statutory authority of the board; violated board rules, policies, and contracts; was made under unlawful procedures; was affected by errors of law; was unsupported by a preponderance of competent evidence; and was unreasonable, arbitrary, capricious, and an abuse of discretion.

Walthart also filed a certiorari action to assert matters she contended could not effectively be raised in a statutory appeal under chapter 279. The district court considered her certiorari arguments and concluded they were without merit. Walthart appealed to this court, which found that certiorari was not a proper remedy under the circumstances. Walthart v. Bd. of Dirs., 667 N.W.2d 873, 875 (Iowa 2003) [hereinafter Walthart I]. We explained that, because Walthart had filed an appeal with an adjudicator, the board’s decision was not yet final. Id. at 876. Further, we held that the appeal to the adjudicator under section 279.17 was her exclusive remedy. Id. at 878. We affirmed the district court’s decision to annul the writ of certiorari.

Walthart then resumed her appeal to the adjudicator. The adjudicator concluded that the board’s finding of just cause to terminate was unsupported by a preponderance of the competent evidence and reversed the board’s decision. The board appealed that decision to the district court pursuant to Iowa Code section 279.18. The district court reversed the adjudicator’s decision and affirmed the board’s decision to terminate.

II. The Issues.

Walthart raises five issues on appeal, but three of them may be subsumed into her two main arguments: (1) the district court erred by refusing to consider evidence outside the record as certified by the board, and (2) the board’s decision to terminate her was “[unsupported by a preponderance of the competent evidence in the record” under Iowa Code section 279.18(6).

III. The Scope of the Record in District Court.

In Walthart’s certiorari action against the school district, rejected in Walthart I, she made a record of alleged irregularities in the board’s proceedings to terminate her. Specifically, she claimed that much of her case was

based on events bearing on the board’s decision that occurred outside the formal hearing, such as the alleged involvement by the board’s attorney in the decision-making process.

Walthart I, 667 N.W.2d at 876.

In this case, Walthart attempted to get the record of the certiorari case admitted in district court because it included matters outside the record as certified by the board. This additional record would have included the extraneous acts by board members and their attorney, which allegedly had impacted the board’s decision. Iowa Code section 279.17 limits the evidence that may be considered by the adjudicator.

Within thirty days after filing the notice of appeal [to the adjudicator], or within further time allowed by the adjudicator, the board shall transmit to the adjudicator the original or a certified copy of the entire record of the private hearing which may be the subject of the petition....
The record certified and filed by the board shall be the record upon which the appeal shall be heard and no additional evidence shall be heard by the adjudicator.

(Emphasis added.)

A district court on judicial review of the adjudicator’s ruling is also limited as to the evidence it may consider. Iowa Code § 279.18 (“In proceedings for judicial review of the adjudicator’s decision, the court shall not hear any further evidence but shall hear the case upon the certified record.”). This limited scope of the record in teacher-termination cases must be contrasted to that in other cases involving judicial review of agency action. See Iowa Code § 17A.19(7) (“In proceedings for judicial review of agency action a court may hear and consider such evidence as it deems appropriate.”).

We believe the legislature’s decision to limit the record on judicial review in teacher-termination cases was deliberate; a terminated teacher has an opportunity to expand the certified record by applying to the adjudicator under Iowa Code section 279.17:

Before the date set for hearing a petition for review of board action ..., application may be made to the adjudicator for leave to present evidence in addition to that found in the record of the case. If it is shown to the adjudicator that the additional evidence is material and that there were good reasons for failure to present it in the private hearing before the board, the adjudicator may order that the additional evidence be taken before the board upon conditions determined by the adjudicator. The board may modify its findings and decision in the case by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions, with the adjudicator and mail copies of the new findings or decisions to the teacher.

We agree that a terminated teacher must have a means of challenging the board’s decision with evidence of matters outside the certified record, but we do not agree that it should be done by a district court on judicial review in light of section 279.18, which clearly prohibits it.

The only vehicle for getting outside evidence into the certified record of the board is through an application to the adjudicator requesting that the adjudicator order the board to consider the evidence. Id. § 279.17. Walthart initially made an application to do this, but she withdrew it before the adjudicator ruled on it. In doing so, she lost her only means of supplementing the record, and the district court did not err in rejecting her proffer of the additional evidence.

IV. Sufficiency of the Evidence.

Walthart contends that the board’s factual finding that she knew students were consuming alcohol at the party is not supported by a preponderance of the competent evidence in the record.

A. Standard of review. “On review, courts must determine whether a school board’s decision is supported by a preponderance of the competent evidence in the record.... The court is limited on review to the record made before a school board.” Bd. of Dirs. v. Banke, 498 N.W.2d 697, 701 (Iowa 1993). Review is “for the correction of errors at law.” Sheldon Cmty. Sch. Dist. Bd. of Dirs. v. Lundblad, 528 N.W.2d 593, 596 (Iowa 1995).

B. Preponderance of the credible evidence. “As in virtually every termination case, the controversy boils down to whether the record supports the board’s conclusion that just cause exists to warrant [a teacher’s] dismissal. That conclusion must be supported by more than just substantial evidence; a preponderance — or greater weight — of the competent proof is required.” Id.; cf. Briggs v. Bd. of Dirs., 282 N.W.2d 740, 744 (Iowa 1979).

The distinction between these two standards may be understood by considering the statutes and our cases explaining them.

“Substantial evidence” means the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.

Iowa Code § 17A.19(10)(f)(1) (2003); accord Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 508 (Iowa 2003). Thus, “[a]n agency’s decision does not lack substantial evidence because inconsistent conclusions may be drawn from the same evidence.” Mosher, 671 N.W.2d at 508 (internal quotations omitted).

On the other hand, a “preponderance”

means superiority in weight, influence, or force. The evidence may preponderate, and yet leave the mind in doubt as to the very truth. In such cases the evidence does not fairly set the question at rest, but merely preponderates in favor of that side whereon the doubts have less weight.

Ball v. Marquis, 92 N.W. 691, 692 (Iowa 1902) (not published in Iowa Reports). Thus, when reviewing a board’s decision to terminate, the court’s “task is to examine the record and determine whether the board’s factual findings are supported by a preponderance of the evidence offered.” Bd. of Dirs. v. Justmann, 476 N.W.2d 335, 338 (Iowa 1991). That is the test we apply here.

C. Hearsay and witness credibility. In resolving the issue of the sufficiency of the evidence, two preliminary issues arise. The first relates to hearsay evidence and the second to the board’s determination of witness credibility.

1. Hearsay. Hearsay is admissible in board hearings. Iowa Code § 279.16 (1999) (“The board shall not be bound by common law or statutory rules of evidence ....”); accord Justmann, 476 N.W.2d at 337 (referring to hearsay evidence submitted at the board termination hearing); Fay v. Bd. of Dirs., 298 N.W.2d 345, 349 (Iowa Ct.App.1980) (explaining that hearsay testimony is clearly admissible in teacher-termination hearings). The more pertinent question is how much weight should the board or reviewing court accord hearsay testimony.

We believe that the proper weight to be given to hearsay evidence in such a hearing will depend upon a myriad of factors — the circumstances of the ease, the credibility of the witness, the credibility of the declarant, the circumstances in which the statement was made, the consistency of the statement with other corroborating evidence, and other factors as well.

In this case, the board heard several witnesses whose testimony was based largely on hearsay. This testimony included that of the school superintendent, several peace officers, the school guidance counselor, and a basketball eoaeh/science teacher.

The adjudicator found that the board relied too heavily on hearsay testimony, stating that “Iowa law requires that such hearsay evidence may not be relied upon, without further support in the record, to establish the truth of the matter asserted.” We disagree with the adjudicator’s characterization of the evidence. At least two of the students who attended the party testified that they believed Carol Walthart knew the students were drinking alcohol. The hearsay testimony was not the only basis for the board’s decision; to the contrary, it was corroborative in nature and supported the students’ testimony.

Additionally, we believe the hearsay testimony in this case bore sufficient indicia of reliability. First, the statements were made by adolescent teens just days after the tragedy. As David Malausky, the school guidance counselor, testified, “My experience has been you get very, very accurate information when kids are vulnerable. All their defense mechanisms are down and they just lay everything out there for you to work with.” Second, these statements were often made in private to trusted officials (i.e., the guidance counselor and basketball coach), or to figures of authority (i.e., the superintendent and police officers). Third, the testimony from all of the hearsay witnesses seems consistent — they all recalled that, when asked if Carol Walthart knew of the student drinking, the majority of the students stated that she did.

2. Credibility of witnesses, Walthart challenges the board’s findings with respect to witness credibility. The Code provides the starting point for the credibility analysis. In reviewing the board’s decision, “especially when considering the credibility of witnesses, the court shall give weight to the fact findings of the board; but shall not be bound by them.” Iowa Code § 279.18 (emphasis added); see also id. § 279.17 (providing the same directive to adjudicators). We have said that deference is especially appropriate on the witness-credibility issue because “the board is uniquely situated to pass on the credibility of the various witnesses at the hearing.” Justmann, 476 N.W.2d at 338; accord Libe v. Bd. of Educ., 350 N.W.2d 748, 750 (Iowa Ct.App.1984) (stating that the board is in the best position to adjudge credibility); cf. Claus v. Whyle, 526 N.W.2d 519, 524 (Iowa 1994) (“Factual disputes depending heavily on credibility of witnesses are best resolved by the trial court, which has a better opportunity to evaluate credibility than do we.”).

The board made specific findings on credibility with respect to each of the witnesses. For the most part, the board found the testimony of witnesses supporting the superintendent’s application to be credible — and those who resisted it to lack credibility — and the board gave specific reasons as to each witness with respect to its findings. Here, although some witnesses’ testimony conflicted, we conclude that the board’s credibility finding is amply supported in the record.

D. Merits. Most of the facts are not disputed. On Saturday, September 30, 2000, Carol Walthart’s son, Mark, and a number of his friends (all EDCO students) had a “campout” in a large field owned by Mark’s family. The campout began around 2 p.m., but was not in full swing until 7 p.m. There was a fire, music, a tent, and alcohol brought by students. The record shows that neither Carol Walthart nor Dennis knew that alcohol was present at this time. The first time that Carol or Dennis could have acquired knowledge was when they drove down to the campsite at 10 p.m.

At that time, they were returning from dinner at a friend’s house, and they wanted to check in on Mark and see how the campout was going. They drove their car down to the site and pulled in approximately fifty feet from the campfire. Mark and his friend, Andy Althoff, walked over to the car to meet them. A conversation ensued, although there is some dispute as to its contents. Dennis and Carol then drove back to their house, which is roughly a mile from the site.

The disputed facts in this case relate solely to whether Carol Walthart discovered that the students were drinking alcohol on her visits to the campsite that evening. The facts accepted by the board are as follows. When Walthart and her husband first visited the campsite at 10 p.m., they talked with Mark and Andy. Walthart’s husband asked the boys, “What kind of party is this?” To this Andy replied it was a beer party and that drinking was taking place. Dennis and Carol then left. When Carol returned at 10:45 p.m. with food, she proceeded to take all of the car keys from the male students. When asked why, Carol said that she knew students were drinking, and she did not want anyone to get hurt driving around. As this exchange was taking place at the campsite, Andy and Mark returned to the Walthart residence, where Dennis Walthart had remained. Dennis, apparently suspecting that the boys had been drinking, asked, “You boys aren’t driving down to the campsite, are you?” The boys replied that they would not drive and instead would let two girls, who were with them, drive the cars. When the boys returned to the campsite, Carol was just leaving. She asked Andy for his keys, and he gave them to her.

This story is supported by the following testimony. Andy Althoff testified that he told Carol and Dennis, on their first trip to the campsite, that the students were drinking alcohol. His testimony is supported by several other witnesses. First, his coach, Dan Cassutt, testified that Andy confided in him just two days after the accident, telling him that the Waltharts knew about the drinking. Second, the superintendent testified that, about a week after the accident, Andy had told him the same thing. The board found Andy’s testimony “most credible.”

Another student, Brian Harbaugh, testified that he thought the Waltharts knew of the alcohol consumption. His testimony was supported by the superintendent and Officer Casey Snyder, both of whom interviewed Brian shortly after the incident. The statements Brian made at the hearing are also consistent with the statement he signed after his interview with Officer Snyder. The board found Brian’s testimony to be credible.

Another student, Carmen Krapfl, testified that, in her opinion, Dennis Walthart knew that Mark and Andy were drunk at some point during the evening because Dennis told the two boys that the girls should drive to the campfire. Carmen believed he made this request because he knew the boys had been drinking. The board found her testimony to be credible.

The school guidance counselor also testified. Although he did not divulge names (due to confidentiality), he testified that he had talked extensively with a number of the students who attended the party. He stated that many of those students told him that Walthart knew they were drinking. The board found him credible and gave “great weight” to his testimony.

Walthart’s testimony presented quite a different picture. She offered undisputed evidence that she was a nondrinker and that alcohol was rarely present in her household. She claimed that several of the students at the campout had been to her house on other occasions and that alcohol was never a part of those events. She trusted those students and never suspected them of planning a drinking party.

Regarding the events of the evening, she stated that she never saw any alcohol, nor was she told that any was present. When she and Dennis drove down to the site the first time, she spoke with Andy and Mark. She was surprised to see that there was no food, and Dennis asked, “What kind of party is this without food?” The boys said they were hungry. Carol said that she would go back to the house, make some snacks, and bring them back down.

On her trip back to the site with the snacks, she saw a truck driving in a neighboring hay field, which contains dangerous, hidden sinkholes. Also, Dennis had just cut the hay a few days before, and she did not want the boys to damage his crop. She decided to take the keys from all of the boys’ vehicles so that they could not drive in the field. She did not take the girls’ keys because she did not want them to stay overnight, and she assumed they would not be inclined to drive their cars in a field, anyway. At no point did Walthart observe any drinking or unusual behavior from any of the students, according to her.

Walthart’s version is also supported by other evidence in the record. First, Carol and Dennis’s testimony support their version of the facts. Second, Officer Steven Trumblee, the officer who interviewed the Waltharts after the accident, testified that he believed the Waltharts’ story. In addition, a few students testified at the hearing that there was “no way” that Carol could have known about the alcohol. They claim they hid all of the evidence when Carol was present because she never would have approved. Further, these students supported Walthart’s claim that she took the keys because of the danger of driving in the nearby field.

However, the testimony from the students supporting Walthart’s story is suspect for two reasons. First, the three students who were Walthart’s strongest advocates were also good friends of her son Mark, having previously spent a lot of time at the Walthart residence. Second, several of these students initially gave statements to police or the superintendent stating that Walthart knew about the drinking, but then recanted those statements at the hearing.

For example, Josh Amling (one of Mark’s best friends) originally told the superintendent that Walthart took the keys because she knew that students were drinking. At the hearing, however, Josh stated that Walthart did not know about the drinking. Instead, he changed his testimony to fit Walthart’s version — that she took the keys because she did not want the students driving in the nearby field. The board found Josh to be defensive throughout the hearing and determined that his testimony was not credible.

Another such student is Nick Kirby. Shortly after the accident, he was interviewed by Officer Hermes. During that interview, he signed a statement, which read: “Mark’s parents didn’t supply alcohol as far as I know. I think they knew about the drinking and thats [sic] why they took the keys.” At the hearing, Officer Hermes recalled his interview with Nick:

Q. Did [Nick] indicate to you whether or not Carol Walthart had knowledge that students were drinking at the party? A. Yes. He did indicate that to me.
Q. What did he say? A. He said that he believes that Mrs. Walthart knew that they were drinking at the party and that’s why they took the keys away.
Q. Did he make a statement to you about alcohol being visible at the party? A. He stated to me at the time, and I think it was the second time Mrs. Walt-hart came, and that was with the food, that they were sitting around the fire at that time drinking beer, and said that there was beer available- — I mean visible at that time.

At the hearing, however, Nick’s story changed dramatically. He testified that Walthart did not know about the drinking; in fact, he stated, “[t]here was no way they could have known.” Nick testified that his signed written statement did not accurately reflect what he had told Officer Hermes. He asserted that Officer Hermes told him to write the statement regarding Walt-hart’s knowledge, even though Nick did not actually think it was true. At the end of his testimony, Nick claimed that he only agreed to the statement because he was in a hurry and had things to do that day. The board found Nick’s testimony not credible.

V. Evidence Applied to the “Just Cause” Determination.

The board found that the superintendent had satisfied his burden to show grounds for termination. The board found Walt-hart had knowledge that alcohol was being consumed on her property, she allowed that to continue without adequate monitoring, and she did nothing to stop the party except to take some of the ear keys. The board concluded this damaged her reputation as a teacher and was detrimental to her ability to be an effective role model. It found she lacked support from other faculty members, indicating her effectiveness as a teacher was greatly diminished. The board concluded that

[f]or the Board to retain her on the faculty would render its anti-alcohol policy meaningless and subject to utter disregard by the student body and perhaps even the faculty.

We agree. These findings gave the board “just cause” to terminate Walthart’s teaching contract.

VI. Conclusion.

On our review of the record, we conclude the board’s finding and disposition were supported by a preponderance of the competent evidence. We hold that the district court correctly affirmed the board’s decision to terminate Walthart’s contract.

AFFIRMED.

      . As discussed later, additional evidence may be ordered by the adjudicator to be submitted to the board, but the evidence that may be considered by the adjudicator is clearly limited to the certified record furnished by the board.