author: KAPSNER, Justice.

text:
    2002 ND 137
    U.S. BANK, NATIONAL ASSOCIATION, as Trustee of the Washburn Trust No. 1, Plaintiff and Appellant, v. Donald V. KOENIG, Robert L. Koenig, James S. Koenig, Eilene J. Doble, and Joy A. Person, Defendants and Appellees, The Falkirk Mining Company, a corporation, the unknown successors, assignees, heirs or legatees of any of them, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon the property described in the complaint, Defendants.
    No. 20020038.
    Supreme Court of North Dakota.
    Aug. 20, 2002.
    Rehearing Denied Sept. 27, 2002.

      William P. Pearce (argued), Pearce & Durick, Bismarck, for plaintiff and appellant.
    William F. Lindell (argued) and David A. Lindell (appeared), Washburn, for defendants and appellees.
   KAPSNER, Justice.

[¶ 1] U.S. Bank, as Trustee of the Washburn Trust No. 1, appeals from a summary judgment quieting title to the coal under a quarter section of land to Donald Koenig, Robert Koenig, James Koenig, Eilene Doble, and Joy Person (“Koenigs”). We construe a 1906 warranty deed conveying the land from U.S. Bank’s predecessor in interest to the Koe-nigs’ predecessor in interest to reserve the coal to U.S. Bank’s predecessor. We reverse and remand for entry of judgment consistent with this opinion.

I

[¶ 2] In a 1906 warranty deed, William and Lizzie Washburn, U.S. Bank’s predecessors in interest, conveyed a quarter section of land to Emil Borchardt, the Koe-nigs’ predecessor in interest. The original 1906 deed is not part of this record, but the county recorder’s record for the conveyance identified the Washburns, the grantors, as the “parties of the first part” and Borchardt, the grantee, as the “party of the second part,” and provided:

said second party reserving and excepting therefrom all coal now or hereafter to be found in said land, also the right and title to the use of such surface ground as may be necessary for mining operations, and the right of access to such reserved and excepted coal for the purpose of exploring, developing, working and removal of the same. •

[¶ 3] U.S. Bank commenced this quiet title action against the Koenigs, claiming the reservation clause entitled it to the coal. U.S. Bank alleged the warranty deed contained a “scrivener’s error, or an error in transcription of the original deed into the record, in that it states ‘said second party reserving and excepting therefrom all coal,’ whereas the reservation must necessarily have been to [the Wash-burns], the parties of the first part, who made the grant.” The Koenigs, successors in interest to ninety-five percent of the interest acquired by Borchardt, claimed they owned ninety-five percent of the coal under the land because the warranty deed did not effectively reserve the coal to the Washburns.

[¶ 4] U.S. Bank and the Koenigs both moved for summary judgment. U.S. Bank argued, as a matter of contract interpretation, there was “no question that the parties intended [the reservation] clause to reserve all of the coal to the grantors and that the term ‘said second party’ at the beginning of the clause was inadvertently substituted for the term ‘said first party,’ since the party of the second part in a deed, that is the grantee, cannot reserve something which he does not own and cannot except something from the grant being made to him by the grantor.” The Koenigs argued that U.S. Bank failed to offer any evidence to clearly and convincingly establish grounds for reformation of the 1906 deed.

[¶ 5] The trial court concluded U.S. Bank failed to establish that the language in the coal reservation constituted a mutual mistake and that the written instrument did not truly express the parties’ intent. The court decided U.S. Bank could not sustain the burden of proof necessary for reformation or revision of the warranty deed and granted summary judgment for the Koenigs.

II

[¶ 6] U.S. Bank argues the proper interpretation of the warranty deed establishes its predecessor in interest, the Washburns, reserved and excepted the coal from their conveyance to the Koenigs’ predecessor in interest. U.S. Bank argues extrinsic evidence is not necessary to determine the parties’ intent because the only possible meaning for the reservation clause is to reserve the coal to the Wash-burns.

[¶ 7] The issues in this appeal are raised in the posture of summary judgment, which is a procedural device for resolving a controversy on the merits without a trial if the evidence demonstrates there are no genuine issues of material fact, or inferences to be drawn from undisputed facts, and if the evidence shows a party is entitled to judgment as a matter of law. Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4, 638 N.W.2d 545.

[¶ 8] Except as otherwise provided in N.D.C.C. ch. 47-09, grants are interpreted in the same manner as contracts. N.D.C.C. § 47-09-11. Contracts are construed to give effect to the parties’ mutual intent at the time of contracting. N.D.C.C. § 9-07-03; Haag v. Noetzelman, 1999 ND 157, ¶ 6, 598 N.W.2d 121. The parties’ intent must be ascertained from the writing alone if possible. N.D.C.C. § 9-07-04; Haag, at ¶ 6. The parties’ intent must be ascertained from the entire instrument, and every clause, sentence, and provision should be given effect consistent with the main purpose of the contract. Haag, at ¶ 6. Under N.D.C.C. § 9-07-17, “[rjepugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clause subordinate to the general intent and purpose of the whole contract,” See Northwest G.F. Mut. Ins. Co. v. Norgard, 518 N.W.2d 179, 184 (N.D.1994). Grants in a contract are interpreted in favor of the grantee, except a reservation in any grant is interpreted in favor of the grantor. N.D.C.C. § 47-09-13. If the parties’ intent can be ascertained from the writing alone, the interpretation of the contract is entirely a question of law, and we independently examine and construe the contract to determine if the trial court erred in its interpretation of the contract. Haag, at ¶ 6.

[¶ 9] In Perschke v. Burlington Northern, Inc., 311 N.W.2d 564, 565 (N.D.1981), this Court considered a similar issue regarding the interpretation of a 1906 deed that conveyed a tract of land and “reserved and excepted coal and iron lands.” Perschke, the successor in interest of the grantee, argued the reservation reserved the coal and iron lands, surface and all, and not just the coal and iron itself, and thus was void as repugnant to the grant. This Court construed the word “lands” to mean “interests,” so the deed reserved the coal and iron interests in the property conveyed without reserving the surface interests:

In construing the reservation clause of the 1906 deed we must strive to give effect to the mutual intention of the parties as it existed at the time, so far as that intent is ascertainable and lawful. Section 9-07-03, N.D.C.C. Perschke urges us to interpret the clause as reserving coal and iron property, surface and all, with the ultimate effect of voiding the entire reservation for being repugnant to the grant. We are unpersuaded that Perschke’s interpretation would give effect to the mutual intention of the parties. Upon examining the reservation it is quite obvious that the grantor was attempting to at least reserve for itself all coal and iron interests in the property granted, but under Perschke’s interpretation of the clause the grantor and its successors in interest would have effectively reserved nothing. That interpretation of the clause would also be contrary to the rule that reservations must be interpreted in favor of the grantor. Section 47-09-13, N.D.C.C.; Gilbertson v. Charlson, 301 N.W.2d 144 (N.D.1981).
In the instant case, as in Carlson [v. Minnesota Land & Colonization Co., 113 Minn. 361, 129 N.W. 768 (1911)], the reservation clause expressly reserves “the use of such surface ground as may be necessary for mining operations.” We agree with the Minnesota Supreme Court that if the grantor was attempting to reserve the coal and iron property, surface and all, there would be no reason for it to have reserved the use of the surface for mining operations. In construing a contract or deed we must construe all provisions together and give meaning to every sentence, phrase and word. Section 9-07-06, N.D.C.C.; Delzer Construction Co. v. New Marian Homes Corp., 117 N.W.2d 851 (N.D.1962). If we were to interpret the reservation as reserving the coal and iron property, surface and all, the phrase “reserving ... the use of such surface ground as may be necessary for mining operations” would be meaningless. Perschke explains that in addition to reserving the coal and iron property the grantor, by reserving the use of the surface ground, was attempting to insure that he had access to the reserved property. We are not convinced that Perschke’s explanation gives meaning to the language which reserves use of the surface, because the clause also contains language expressly reserving a right of access to the reserved “coal and iron lands.”
In accord with the foregoing analysis we construe the reservation clause of the 1906 deed as reserving the coal and iron interests in the property conveyed without reserving the surface interests of the property. In so construing the clause we have interpreted the term “lands” as meaning “interests.” We believe that our construction gives the term “lands” consistency throughout the clause, gives meaning to every sentence and phrase of the clause, and correctly ascertains the intention of the parties to the deed at the time of its execution.

Perschke, at 567.

[f 10] Here, the county recorder’s records identified the grantee, Bor-chardt, as the “party of the second part,” but the reservation clause said the “second party” reserved and excepted all coal. The reservation clause also said the “second party” reserved and excepted the right and title to the surface for mining operations and for access to the reserved and excepted coal. Under our rules for construing deeds, any uncertainty about the reservation must first be resolved from the four corners of the deed by giving meaning to each word, sentence, and provision in a manner that is consistent with the purpose of the deed. See Haag, 1999 ND 157, ¶ 6, 598 N.W.2d 121. Construing the reservation clause to reserve the coal to the grantee would render the reservation clause meaningless. We construe the deed and the reservation clause as a whole in favor of the grantor to give meaning to each word and phrase and to reconcile repugnant words in a manner consistent with the intent and purpose of the deed. See Perschke, 311 N.W.2d at 567. Under those rules of construction, we construe the deed to reserve the coal to the grantors, the Washburns. That interpretation construes the reservation in favor of the grantor, see N.D.C.C. § 47-09-13, reconciles repugnant words in a manner that is subordinate to, and consistent with, the general intent and purpose of the deed, see N.D.C.C. § 9-07-17, and gives meaning to every clause, sentence, and provision in the deed. See Haag, at ¶ 6; Perschke, at 567. We conclude the parties to the 1906 deed intended that the Washburns reserved and excepted the coal from their conveyance to Borchardt. Because we conclude the parties’ intent can be ascertained from the document itself, the interpretation of the deed is a question of law for the court to decide, see Haag, at ¶ 6, and legal principles regarding reformation are not applicable to our interpretation.

Ill

[¶ 11] We reverse the summary judgment and remand for entry of judgment consistent with this opinion.

[¶ 12] GERALD W. YANDE WALLE, C.J., MARY MUEHLEN MAKING, WILLIAM A. NEUMANN, and GEORGIA DAWSON, D.J., concur.

[¶ 13] The Honorable GEORGIA DAWSON, D.J., sitting in place of SANDSTROM, J., disqualified.

      . In 1941 N.D. Sess. Laws ch. 234, the Legislature authorized the use of photography for making permanent county records. See Rausch v. Nelson, 134 N.W.2d 519, 526 (N.D.1965) (construing photography to include microfilm).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 SD 107
    WEST TWO RIVERS RANCH, Appellant, v. PENNINGTON COUNTY, South Dakota, Appellee.
    No. 22112.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided Aug. 21, 2002.
    Gene R. Woodle, Rapid City, South Dakota, Ronald Ragsdale, Andrews, Texas, Attorneys for appellant.
    Tobin A. Earn, Pennington County, Deputy State’s Attorney, Rapid City, South Dakota, Attorney for appellee.
   PER CURIAM.

[¶ 1.] West Two Rivers Ranch (Ranch) appeals its assessed valuation in Pennington County. We affirm.

FACTS

[¶ 2.] This case is before this Court for the second time. A full recitation of the facts relevant to the first appeal can be found in West Two Rivers Ranch v. Pennington Co., 1996 SD 70, 549 N.W.2d 683. The following facts are pertinent to this appeal.

[¶ 3.] Ranch encompasses over 20,000 acres lying in two different counties: 19,-356.58 acres are in Meade County and approximately 2,500 acres are in Pennington County. In 1994, the Meade County property was assessed at a value of $41.25 per acre while the Pennington County property was assessed at a value of approximately $85.00 per acre. Ranch appealed each county’s valuation to the respective county boards of equalization, the office of administrative hearings and the circuit court. The valuations were affirmed at every step with the exception that the administrative law judge sitting in Pennington County made a $2.00 per acre downward adjustment in the value of the Pennington County property in recognition of its status as rangeland rather than cropland. The valuations were then appealed to this Court with the result that the valuation of the Meade County property was affirmed while the valuation of the Pennington County property was reversed and remanded. The remand required that, as part of its valuation process, Pennington County consider sales of property with comparable access and topographic conditions.

[¶ 4.] After this Court’s remand, the Pennington County Director of Equalization analyzed 105 sales of agricultural property in Pennington County that occurred from 1990 to 1993. In this review, the Director placed specific emphasis on sales of property with comparable access, location and topographic limitations. Of the 105 sales analyzed, 6 involved properties with a comparable lack of access. None of the 6 properties had road access and all 6 properties had to be accessed through property owned by others. All 6 of the properties also had topographic conditions that further limited access to roads. Based upon this review, the Director arrived at a valuation of $83.31 per acre for a total valuation of $207,812.

[¶ 5.] A hearing on the revaluation of the Pennington County property was conducted by the trial court on May 14, 2001 and the trial court subsequently entered findings of fact, conclusions of law and an order upholding the valuation. Ranch again appeals to this Court.

ISSUE

[¶ 6.] Whether the valuation of the Pennington County property violates state constitutional requirements of equality and uniformity in taxation?

[¶ 7.] S.D. Const, art. VIII, § 15 provides:

The Legislature shall make such provision by general taxation and by authorizing the school corporations to levy such additional taxes as with the income from the permanent school fund shall secure a thorough and efficient system of common schools throughout the state. The Legislature is empowered to classify properties within school districts into separate classes for purposes of school taxation. Taxes shall be uniform on all property in the same class, (emphasis added).

S.D. Const, art. XI, § 2 provides:

To the end that the burden of taxation may be equitable upon all property, and in order that no property which is made subject to taxation shall escape, the Legislature is empowered to divide all property including moneys and credits as well as physical property into classes and to determine what class or classes of property shall be subject to taxation and what property, if any, shall not be subject to taxation. Taxes shall be uniform on all property of the same class, and shall be levied and collected for public purposes only. Taxes may be imposed upon any and all property including privileges, franchises and licenses to do business in the state. Gross earnings and net incomes may be considered in taxing any and all property, and the valuation of property for taxation purposes shall never exceed the actual value thereof. The Legislature is empowered to impose taxes upon incomes and occupations, and taxes upon incomes may be graduated and progressive and reasonable exemptions may be provided, (emphasis added).

[¶ 8.] Ranch argues that the valuation of its Pennington County property at an amount twice the assessed value of its Meade County property violates the principles of equality and uniformity in taxation that are set forth in the above constitutional provisions. Pennington • County argues that because Ranch failed to submit proposed findings of fact and conclusions of law to the trial court, this Court’s review is limited to the question of whether the findings of fact support the trial court’s conclusions of law and judgment. See Sutiera v. Sully Buttes School Dist. 58-2, 1997 SD 27, ¶ 9, 561 N.W.2d 20, 23 (failure to object to findings of fact and conclusions of law or to propose findings limits review to question of whether findings support the conclusions of law and judgment). However, there is no factual dispute in this case. Resolution of this appeal turns entirely on the legal question of whether inconsistent valuation of Ranch’s property by two different counties violates the principles of equality and uniformity in taxation contained in the South Dakota Constitution. Such questions of law are normally subject to de novo review. See Jackson v. Weber, 2001 SD 136, ¶ 9, 637 N.W.2d 19, 22 (2001) (questions of law are reviewed de novo). Furthermore, Ranch did present this argument to the trial court during its closing statement at the hearing on this matter. Thus, the trial court did have an opportunity to rule on the issue. See State v. Eidahl, 495 N.W.2d 91, 94 (S.D.1993)(trial court must be afforded opportunity to rule on an issue).

[¶ 9.] Turning to the merits of Ranch’s argument, “constitutional provisions relating to equality and uniformity in taxation require equality and uniformity in both rate and valuation or assessment!)]” 84 CJS Taxation § 42 (2001). However, “[i]n determining the question of discrimination because of inequality of valuation or assessment of property for tax purposes, the inquiry is limited to the particular taxing district or county in which the properties involved are situated.” Id (emphasis added). As explained in 71 Am.Jur.2d State and Local Taxation § 124 (2001), “Uniformity in taxation' implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of valuation. The constitutional mandate for uniformity in tax assessment requires uniformity in the assessment of properties having like characteristics and qualities, located in the same area.” (emphasis added).

[¶ 10.] This Court has previously endorsed the principle that issues over equality and uniformity in taxation must focus on the particular county or taxing district involved. In Bon Homme County Farm Bureau v. Board of Com’rs, 53 S.D. 174, 220 N.W. 618 (1928), this Court considered whether a statutorily set minimum funding level for county agricultural extension services caused a violation of various constitutional provisions requiring equality and uniformity in taxation. In reaching its decision, this Court made the following pertinent observations:

[T]his provision of the Constitution means only that the tax must be uniform and equal in the same taxing district. So long as a tax is uniform throughout the county, this provision of the Constitution is complied with. And, where a tax is equal and uniform in its application to all persons of the same class within a particular taxing district, it complies with the provisions of section 18, art. 6 of our Constitution.

Bon Homme County, 53 S.D. at 180, 220 N.W. at 621 (citations omitted)(emphasis added).

[¶ 11.] In Kramar v. Bon Homme County, 83 S.D. 112, 155 N.W.2d 777 (1968), this Court considered whether statutes permitting an additional tax levy on property in school districts not operating high schools for the support of school districts in each county that were operating high schools violated a constitutional requirement of uniformity of taxation of property of the same class. Again looking to the taxing districts involved, this Court held:

The burden of the tax imposed is uniform upon all property in the same class in each common school district in the separate counties of the state and is not violative of the constitutional provision relied upon by the trial court or any other claimed violation set forth in the complaint of plaintiff-respondent.

Kramar, 83 S.D. at 117, 155 N.W.2d at 779 (emphasis added).

[¶ 12.] More pertinent to the instant case, in In re Robinson, 73 S.D. 580, 46 N.W.2d 908 (1951), the City of Huron and Beadle County appealed a circuit court judgment reducing the assessed valuation of certain structures in Huron. On appeal, the city and county argued that the circuit court’s action created or increased gross inequalities by reducing the assessed valuation of the structures. This Court set forth the applicable test on appeal as follows: “The only question here presented then is whether the assessment as determined by the circuit court is much lower in amount according to value than other property of the same class in the same taxing district If so, the assessment lacks uniformity, S.D. Const. XI, § 2, and is grossly inequitable.” Robinson, 73 S.D. at 581-82, 46 N.W.2d at 909 (emphasis added)(some citations omitted), rev’d on other grounds, 89 S.D. 651, 659, 237 N.W.2d 665, 669-70 (1975).

[¶ 13.] Here, as set forth under the facts, Pennington County’s assessment took into consideration sales of 105 agricultural properties in Pennington County, the taxing district involved, over the three year period prior to the assessment. Of those 105 sales, specific consideration was given to six properties having topographical conditions and access limitations similar to those of Ranch. As in Robinson, this evidence should be found sufficient to support the Pennington County valuation. See Robinson, supra (evidence relating to value of property in comparison with other property located in City of Huron used for similar purposes found sufficient to support circuit court findings as to the value of the subject property).

[¶ 14.] Ranch seeks to compare the assessed valuation of its Pennington County property with the assessed valuation of its Meade County property. However, under the principles discussed above and previously followed by this Court, such a comparison is not relevant because it involves property in two different counties or taxing districts. See SDCL 10-3-16 (each county in this state is an assessment district); SDCL 10-5-1 (real estate assessed in taxing district in which it is situated). Such a comparison would only be relevant in this case under a narrow statutory exception contained in SDCL 10-6-64 (1996 rev.) at the time of the original assessment of the property. The statute provided in pertinent part:

For the purpose of valuing agricultural land, if there are less than fifteen sales of agricultural land within a county, the director of equalization shall use sales of agricultural land within the county from previous years or sales of comparable agricultural land within adjoining counties.

Id (emphasis added).

[¶ 15.] Here, the Pennington County Director of Equalization testified that he used sales of agricultural land within Pennington County from previous years instead of sales of comparable land from adjoining counties because of differences in soil surveys and ratings. Rather than being at odds with the principles of equality and uniformity in taxation discussed above, this approach is fully consistent with the guideline that, “requires uniformity in the assessment of properties having like characteristics and qualities ... in the same area.” 71 Am.Jur.2d State and Local Taxation § 124 (2001).

[¶ 16.] Based upon the foregoing, there is no showing that the circuit court erred in upholding Pennington County’s revaluation of Ranch’s property.

[¶ 17.] Affirmed.

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and ZINTER, Justices, participating.

      . Because of its topographic features, the Pennington County property is almost completely inaccessible.

        . Ranch also notified the Attorney General of its constitutional challenge and the Attorney General declined intervention in the matter.

      . SDCL 10-6-64 was repealed in 1998. See 1998 S.D. Sess.L. ch. 53, § 7.


author: ANDERSON, LEE D., Circuit Judge.

text:
    2002 SD 105
    TABLE STEAKS, Plaintiff and Appellee, v. FIRST PREMIER BANK, N.A. and Mastercard International, Defendant and Appellant.
    No. 21878.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2002.
    Decided Aug. 21, 2002.

      Donald Srstka, Sioux Falls, for plaintiff and appellee.
    James E. Moore and Jennifer L. Woll-man of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendants and appellants.
   ANDERSON, LEE D., Circuit Judge.

[¶ 1.] Table Steaks, Inc., brought suit against First Premier Bank, NA (First Premier) and MasterCard International (MasterCard) after they terminated the credit card processing agreement and placed Table Steaks on the Combined Terminated Merchant File. A jury awarded Table Steaks a verdict of $259,000. We affirm.

FACTS

[¶ 2.] Table Steaks is a restaurant and bar that also contains pool tables and video games. It is located in Edgewater, Colorado and owned by Table Steaks, Inc., a corporation whose stock is owned by Frank Burgess. Table Steaks has thirty-four employees and first opened for business on April 4,1992.

[¶ 3.] Early in 1992, a representative of First Premier solicited Table Steaks to enter into a MasterCard/Visa credit card processing agreement for the restaurant. It told Table Steaks that it would enjoy higher gross receipts and less risk by accepting pre-approved credit card sales by the use of a credit card terminal. In addition, Table Steaks was assured that the electronic credit card terminal would not make mistakes.

[¶ 4.] On March 26, 1992, Table Steaks completed an application with First Premier to process MasterCard and Visa credit cards. First Premier and MasterCard accepted the application and within a month of its opening Table Steaks began taking MasterCard and Visa credit cards from its customers. However, no written acceptance of this application by First Premier was produced at trial.

[¶ 5.] Several months after opening the restaurant, Table Steaks also procured a Discover Card processing agreement with NaBANCO of Atlanta, Georgia. Table Steaks operated a growing business from the spring of 1992 through the spring of 1994. It did not experience any problems ■with either of its credit card processing agreements.

[¶ 6.] On Friday, June 3, 1994, during the start of a busy weekend for Table Steaks, the credit card system began refusing to approve the customers’ credit cards. Table Steaks was hosting a regional pool tournament that weekend which a large number of people attended. Table Steaks assumed the system was malfunctioning and attempted to contact First Premier by phone. Despite numerous phone calls to First Premier over the weekend, Table Steaks did not receive any explanation for the credit card refusal until Tuesday, June 7, 1994. On that date First Premier informed Table Steaks that the restaurant could no longer accept MasterCard/Visa credit cards and that Table Steaks had been placed on the Combined Terminated Merchant File.

[¶ 7.] Table Steaks then learned of discrepancies in the use of two credit cards at its business. During February and March of 1994, Table Steaks accepted charges on two credit cards issued to Robert North-cutt. One card was used at Table Steaks on six occasions in February 1994, and a second card was used at Table Steaks on six occasions in March 1994. First Premier and MasterCard claimed that the cards used were stolen and fraudulently presented. Northcutt signed an affidavit for the defendants claiming that his credit cards “may have been stolen.” Table Steaks never had any charge-backs and was not aware there were any problems with the Northcutt credit cards until after the termination of its credit card arrangement.

[¶ 8.] Although MasterCard had information of the claimed fraudulent use of the Northcutt credit cards, neither MasterCard nor First Premier informed Table Steaks of the problem. Instead, MasterCard sent a letter on May 17, 1994 to First Premier informing the bank that Table Steaks was a possible merchant violator. Specifically, the letter stated that Table Steaks had exceeded MasterCard’s acceptable fraud percentage, which means over eight percent of Table Steaks’ credit card sales were fraudulent during two consecutive months. The letter informed First Premier that because Table Steaks had exceeded the fraud threshold limit, it could either continue its relationship and agree to accept liability for all future fraudulent transactions at Table Steaks or terminate its relationship with Table Steaks. If First Premier chose to terminate the relationship, it was required to put Table Steaks on the Combined Terminated Merchant File, which listing would be shared with other credit card processing banks. Being placed in the Combined Terminated Merchant File would keep Table Steaks from obtaining a credit card processing agreement with other banks and would essentially block Table Steaks from accepting all credit cards from its customers.

[¶ 9.] Based on the information provided by MasterCard, First Premier terminated its Merchant Processing Agreement with Table Steaks on approximately June 3, 1994. The bank also placed Table Steaks on MasterCard’s Terminated Merchant File. Although it was First Premier’s customary policy to telephone its merchant customers about termination, it did not telephone Table Steaks to notify it of the termination.

[¶ 10.] Table Steaks’ Discover Card processing agreement with NaBANCO was also terminated as a result of Table Steaks’ placement on the Terminated Merchant File. Subsequently, Table Steaks made a number of unsuccessful attempts to procure other credit card processing agreements through other banks. Table Steaks eventually installed a cash machine/ATM machine to give its customers another payment option. It was not until November 1997 by the use of. a joint guarantor, that Table Steaks finally located a bank that would resume processing credit card payments. Table Steaks’ gross sales immediately increased and within the next three years, the credit card sales rose to nine percent of the gross receipts.

[¶ 11.] In May 1997 Table Steaks filed this action alleging breach of contract against First Premier. It also alleged that First Premier and MasterCard tortiously interfered with Table Steaks’ business relationships by wrongfully terminating the credit card service agreement. The jury found that First Premier committed a breach of contract and awarded damages in the amount of $9,000. The jury also found that both First Premier and MasterCard were liable for breach of interference with a valid business relationship or expectancy. The jury awarded Table Steaks additional damages of $150,000 against First Premier and $100,000 against MasterCard.

[¶ 12.] The issues are:
Was the evidence sufficient to support the jury’s finding of breach of contract? Was the evidence sufficient to support the jury’s verdict that First Premier and MasterCard tortiously interfered with a valid business relationship or expectancy?
Did the trial court err in refusing to grant First Premier and MasterCard’s motion for a new trial?

STANDARD OF REVIEW

[¶ 13.] “Our review of the sufficiency of the evidence on appeal involves consideration of the evidence and inferences derived from the evidence in the light most favorable to upholding the verdict.” Builders Supply Co. Inc. v. Carr, 276 N.W.2d 252, 257 (S.D.1979). We will consider First Premier and MasterCard’s evidence only insofar as it tends to amplify, clarify, or explain evidence in support of the jury verdict. “If, when so viewed, there is competent and substantial evidence to support the verdict, then it must stand.” Id.

Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury’s verdict, the remedy lies in granting a new trial. [W]e determine that an abuse of discretion occurred only if no ‘judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’

Junge v. Jerzak, 519 N.W.2d 29, 31 (S.D.1994) (citations omitted).

ANALYSIS AND DECISION

ISSUE ONE

[¶ 14.] Was the evidence sufficient to support the jury’s finding of breach of contract?

[¶ 15.] There is no consensus between the parties as to whether the contract between them was written or oral. First Premier argues that in either scenario, it never breached its contract with Table Steaks. If the contract was written, First Premier argues that it contained a clause stating that termination could take place based on its sole determination. If the contract was oral, it argues that it was silent about the terms of termination, and is therefore terminable at will by either party. Table Steaks asserts that whether the contract was oral or written, it contained an implied covenant of good faith and fair dealing.

[¶ 16.] Regardless of the contract’s form, an agreement did exist between the parties. The general rule is that every contract contains an implied covenant of good faith and fair dealing. Garrett v. BankWest, Inc., 459 N.W.2d 833, 841 (S.D.1990). This implied obligation must arise from either the language used in the contract (which is in dispute here) or must be indispensable to effectuate the intention of the parties. Garrett, 459 N.W.2d at 841. Table Steaks asserts that the intention of the parties in this case was to enhance its business by encouraging credit card purchases, and that the implied covenant of good faith and fair dealing is essential to such a contract.

[¶ 17.] Under the evidence presented, the jury reasonably concluded that First Premier did not act reasonably or in good faith when it abruptly terminated its credit card processing agreement with Table Steaks. In viewing the evidence in the light most favorable to Table Steaks, that evidence showed that Table Steaks was not contacted about the suspected fraudulent transactions and never given an opportunity to participate or assist in any investigation of those transactions. During the two year period prior to March 1994, First Premier never experienced any problems with Table Steaks’ credit card processing. Having originally solicited Table Steaks’ business and created the credit card processing relationship, First Premier’s method of termination of the contract was unreasonable and a breach of the implied covenant of good faith and fair dealing. The jury’s verdict of $9,000 against First Premier is not unreasonable or contrary to the evidence. “If this jury’s verdict can be explained with reference to the evidence, rather than by juror passion, prejudice or mistake of law, then the verdict must be affirmed.” Bridge v. Karl’s Inc., 538 N.W.2d 521, 525 (S.D.1995).

ISSUE TWO

[¶ 18.] Was the evidence sufficient to support the jury’s verdict that First Premier and MasterCard tortiously interfered with a valid business relationship or expectancy?

[¶ 19.] First Premier and MasterCard claim that no factual basis supports the jury verdict for tortious interference with a valid business relationship or expectancy. In order to succeed with a claim for tortious interference with a valid business relationship or expectancy, a plaintiff must prove the following essential elements:

1. the existence of a valid business relationship or expectancy;
2. knowledge by the interferer of the relationship or expectancy;
3. an intentional and unjustified act of interference on the part of the interferer;
4. proof that the interference caused the harm sustained; and,
5. damage to the party whose relationship or expectancy was disrupted.

Landstrom v. Shaver, 1997 SD 25, ¶ 73, 561 N.W.2d 1, 16.

[¶ 20.] First Premier and MasterCard claim that the evidence was insufficient to prove element 1, the existence of a valid business relationship or expectancy, and element 3, an intentional and unjustified act of interference on the part of the interferer.

[¶ 21.] In order for Table Steaks to prevail on the claim of tortious interference with a business expectancy, it must first be able to show that its relationship with an identifiable third party was affected by First Premier and MasterCard’s actions. The public at large does not constitute an identifiable third person. Sarkis v. Pafford Oil Co. Inc., 697 So.2d 524, 527 (Fla.App. 1 Dist.1997). Table Steaks produced evidence to show that it had a customer base that preferred to use credit cards for purchases. The customers amounted to approximately eight percent of Table Steaks’ business. Prior to the termination of the processing agreement Table Steaks was averaging 112 credit card transactions per month. In Hayes v. Northern Hills General Hosp., 1999 SD 28, 590 N.W.2d 243, persons seeking medical care in a specific community were found to be an identifiable third party. Likewise, Table Steaks’ customers that preferred to use credit cards for purchases constitute an identifiable third party.

[¶ 22.] Another identifiable third party are the banks that Table Steaks dealt with after it was placed on the Combined Terminated Merchant File. Table Steaks’ evidence indicated that both NaBANCO and Discover quit doing business with Table Steaks because it was on the list. Table Steaks also introduced testimony that other banks refused to enter any credit card processing agreement with Table Steaks because it was on the list. There was sufficient evidence that Table Steaks’ relationships with its credit card-paying customers and banks were noticeably affected by First Premier and MasterCard’s actions.

[¶ 23.] The third element of tortious interference with a business relationship is “an intentional and unjustified act of interference on the part of the interferer.” Landstrom, 1997 SD 25 at ¶ 73, 561 N.W.2d at 16. When First Premier became aware of the possible fraudulent transactions that had allegedly taken place at Table Steaks it did not notify Table Steaks or make any effort to substantiate the claims. Moreover, when given the choice to either assume liability for future fraudulent transactions at Table Steaks or to terminate Table Steaks’ processing agreement, it unilaterally terminated the agreement without even a phone call to notify Table Steaks of the termination. First Premier did not attempt to discuss with Table Steaks an option to continue the credit card processing agreement with Table Steaks incurring the responsibility for any future fraudulent transactions. The abrupt termination occurred more than two months after the date of the last alleged fraudulent transaction.

[¶ 24.] Table Steaks’ evidence showed that First Premier and MasterCard were well aware that the elimination of credit card processing for Table Steaks would interfere with the continuing business relationship of Table Steaks and many of its customers. First Premier was also well aware of what would happen to Table Steaks if it chose to place Table Steaks on MasterCard’s Combined Terminated Merchant File. The testimony indicated that it was common knowledge in the banking industry that businesses placed on that file would not even be considered for credit card processing agreements. The evidence supported the jury’s finding that First Premier unreasonably interfered with Table Steaks’ trade in the credit card industry when it placed Table Steaks on the Combined Terminated Merchant File.

[¶ 25.] The jury also heard evidence that MasterCard never made any effort to notify Table Steaks of the possible fraudulent transactions that took place over the span of two months. It never gave Table Steaks the opportunity to dispute any of the claims even though Table Steaks had never experienced any problems with its system in the past and had no reason to believe it had done anything wrong. MasterCard notified First Premier of the possible fraud and allowed it to choose Table Steaks’ fate. MasterCard also reminded First Premier that MasterCard reserved the right to declare a merchant fraudulent under the exclusive MasterCard Merchant Fraud Rule.

[¶ 26.] After First Premier chose to place Table Steaks on MasterCard’s Combined Terminated Merchant File in June 1994, Table Steaks remained on the list until July 2000. Table Steaks’ evidence indicated MasterCard refused to remove Table Steaks from the list even though a number of reasons supported the removal:

1. MasterCard received a letter from First Premier stating that Table Steaks believed that the alleged fraud incidents had no basis in fact.
2. All of the credit card sales were pre-approved by MasterCard’s authorization center computer and Table Steaks did not know and could not have known that the sales were fraudulent.
3. First Premier formally asked MasterCard to remove Table Steaks from the Terminated Merchant File.
4. MasterCard knew or should have known that Table Steaks would be unable to obtain another processing agreement if it was placed in the file.

MasterCard did not notify Table Steaks that it had been taken off the list in July 2000. Table Steaks discovered this fact at trial when a representative of MasterCard testified. The evidence did not show that Table Steaks presented credit card records that it knew or should have known to be fraudulent.

[¶ 27.] The jury reasonably concluded that MasterCard exceeded its rightful authority and committed an intentional and unjustified act of interference when it forced the termination of Table Steaks’ credit card processing agreement in the manner that occurred. Although MasterCard argues that it was protecting its own interests, “self interest is not a defense where a party’s conduct is improper.” 45 Am.Jur.2d, Interference § 28.

[¶ 28.] MasterCard labeled Table Steaks a fraudulent merchant, and through its Combined Terminated Merchant File spread this information throughout the bank credit card processing industry. MasterCard failed to remove Table Steaks from its list even after the removal was requested from the very bank that had placed it on the list. Sufficient evidence was introduced to support the jury’s finding that an unjustified act of interference with Table Steaks’ valid business relationships or expectancies occurred resulting in substantial damages.

ISSUE THREE

[¶ 29.] Did the trial court err in refusing to grant First Premier and MasterCard’s motion for a new trial?

[¶ 30.] Following the entry of a judgment in favor of Table Steaks, First Premier and MasterCard moved for a new trial under SDCL 15-6-59. The trial court denied the motion.

[¶ 31.] First Premier and MasterCard contend that Table Steaks is judicially estopped from denying that a written contract existed. In bringing this issue of judicial estoppel before the trial court, they pointed out that a copy of a signed agreement between these parties had been attached to Table Steaks’ pleadings in a related lawsuit filed in Colorado. However, Burgess of Table Steaks testified at trial that he was unaware of the existence of any such signed agreement.

[¶ 32.] First Premier and MasterCard were involved in the Colorado case and had ample opportunity to examine the pleadings from that case and address problems associated with them prior to or during trial. They did not do so. Under the doctrine of judicial estoppel the party is bound by his judicial declarations and may not contradict them in a subsequent proceeding involving the same issues and parties. Black’s Law Dictionary 848 (6th ed. 1990).

[¶ 33.] In order for the doctrine of judicial estoppel to apply, the two positions must be absolutely irreconcilable. Gesinger v. Gesinger, 531 N.W.2d 17 (S.D.1995). In the Colorado case, Burgess verified that the Colorado pleadings had both the application and merchant processing agreement attached to them. In this case, Burgess testified that he did not know if the merchant processing agreement was attached to the application he signed. These positions are not absolutely irreconcilable and therefore, judicial estoppel does not supply a basis requiring the granting of a new trial.

[¶ 34.] First Premier and MasterCard also claim that the trial court erred by allowing Table Steaks’ witnesses to testify about damage calculations contained in exhibits 49 and 50. Table Steaks owner, Burgess, and Karen Loya, the office manager, testified concerning the lost income and profits of Table Steaks. During the cross-examination of Burgess, the defense questioned him on damages, which opened the door for further damage testimony. An owner of property is competent to testify about his damages. Burke v. Thomas Chevrolet) 88 S.D. 660, 227 N.W.2d 31 (1975).

[¶ 35.] On redirect examination, Burgess produced exhibits 49 and 50 that he, Loya and his attorney had prepared the night before. These exhibits provided a summary and calculation of Table Steaks’ lost profits. The financial information used to support the calculations in the exhibits was based on Table Steaks’ financial records, including records of credit-card sales. These had been given to the defense prior to trial. Over defense objections that the exhibits should have been produced during discovery, the testimony and exhibits were allowed into evidence.

[¶ 36.] Evidentiary rulings made by a trial court are presumed to be correct and are reversed only if there is an abuse of discretion. In re Dokken, 2000 SD 9, 604 N.W.2d 487. The admission of documentary exhibits does not warrant reversal absent a showing that substantial rights of the party were affected. Sawyer v. Farm Bureau Mut Ins. Co., 2000 SD 144, 619 N.W.2d 644. The trial court did not abuse its discretion in allowing these exhibits.

[¶ 37.] First Premier and MasterCard further allege that the trial court erred by allowing Table Steaks to present damage testimony of gross profits rather than net profits. In calculating Table Steaks’ lost income and profits Table Steaks asserted that the fixed costs, including rent, taxes, utilities, telephone, repairs, depreciation and payroll existed whether Table Steaks had more credit card sales or not. For this reason, the only deductions shown by Table Steaks on Exhibits 49 and 50 were those additional costs that it would have incurred in earning the income it claimed to have lost, including the cost of goods and bank service charges.

[¶ 38.] In Drier v. Perfection, Inc., 259 N.W.2d 496 (S.D.1977) this Court held that lost profits may be recovered under the reasonable certainty test, and admissibility of evidence rests largely in the discretion and practical judgment of the trial court. During the trial, defense counsel had adequate opportunity to cross examine Table Steaks’ witnesses concerning both fixed and variable overhead expenses in order to present the jury with their version of Table Steaks’ losses. Further, the trial court instructed the jury that it was to determine net profits in awarding any damages. The trial court did not abuse its discretion in allowing the damage testimony in this case.

[¶ 39.] First Premier and MasterCard also claim the trial court erred in submitting jury instruction No. 14. This instruction stated that if the jury believed the contract between the parties was written it could award incidental damages for breach of contract for thirty days and consequential damages beyond the thirty-day period. If the jury believed the contract was oral, it could not award incidental damages but could award consequential damages. Consequential damages were defined as “damages, loss, or injury as does not flow directly and immediately from the act of the parties, but only from some of the consequences or results of such act.”

[¶ 40.] SDCL 21-2-1 provides that the measure of damages “is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” The defense has not shown that this jury instruction was erroneous and that the error was prejudicial to the effect that the jury probably would have returned a different verdict. City of Sioux Falls v. Hone Family Trust, 1996 SD 126, 554 N.W.2d 825. The trial court did not abuse its discretion in giving jury instruction No. 14.

CONCLUSION

[¶ 41.] The judgement is affirmed.

[¶ 42.] GILBERTSON, Chief Justice, and AMUNDSON, KONENKAMP, Justices, and GORS, Acting Justice concur.

[¶ 43.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

[¶ 44.] ANDERSON, LEE D., Circuit Judge, for SABERS, Justice, disqualified.

      . With regard to the alleged fraudulent credit card transactions, it was intimated that a female roommate of Northcutt may have taken his credit cards and been involved in the alleged fraudulent use of the cards. However, in the testimony produced at trial it was never revealed who had actually used the cards at Table Steaks and other businesses. Apparently no attempt was made to engage the assistance of Table Steaks in investigating the claimed fraudulent credit card use.


author: GORS, Acting Justice. AMUNDSON, Justice

text:
    2002 SD 96
    STATE of South Dakota, Plaintiff and Appellant, v. Scott RECHTENBACH, Defendant and Appellee.
    No. 21865.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2002.
    Decided Aug. 7, 2002.

      Mark Barnett, Attorney General, Richard M. Williams, Assistant Attorney General, Pierre, for plaintiff and appellant.
    Thomas E. Adams of Yoelker and Adams, Deadwood, for defendant and ap-pellee.
   GORS, Acting Justice.

[¶ 1.] The State of South Dakota (State) appeals the trial court’s order suppressing evidence obtained during a state trooper’s traffic stop of a commercial vehicle. The trial court held that the random stop of the truck was unconstitutional. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] State Trooper Brian Swets (Swets) is a certified drug dog handler for the South Dakota Highway Patrol. Swets’ primary duty with the Highway Patrol is drug interdiction. On December 26, 2000, however, Swets focused his attention on commercial vehicles. Around 3:00 p.m., Scott Rechtenbach (Rechtenbach) was operating his semi-tractor pulling a trailer on Highway 34 near St. Onge, South Dakota. Swets pulled Rechtenbach over to check his logbook and paperwork. This was a random stop. Swets did not observe any driving violations prior to stopping Re-chtenbach, and he had no other reasons to stop him.

[¶ 3.] After Rechtenbach pulled over, Swets asked to see his logbook, registration and driver’s license. Rechtenbach produced these items and told Swets that his logbook was not current. Swets ordered Rechtenbach to step out of his truck and to get into the patrol car so Swets could look over the logbook and paperwork. As Rechtenbach stepped out of the truck, Swets noticed a leather pouch attached to his belt. For safety purposes, Swets conducted a “pat down” search. The leather pouch contained a knife, and a second knife was found in Rechtenbach’s pants’ pocket. Swets also found a piece of hard wire in Rechtenbach’s shirt pocket that had white residue on the end of the wire. Swets recognized this item as a tool commonly used as a pipe-cleaning device for illegal drugs.

[¶ 4.] Swets ordered Rechtenbach to step into the patrol car. Swets testified that Rechtenbach fidgeted and exhibited “continual movement and unrest.” Therefore, Swets checked Rechtenbach’s eyes and conducted a field sobriety test. Re-chtenbach’s performance was consistent with stimulant usage. Swets then walked the drug dog around Rechtenbach’s vehicle. The dog “alerted” to the bottom of the driver’s side door seam. Swets searched the truck and found two glass pipes, a pill and a bottle containing alcohol.

[¶ 5.] Rechtenbach was indicted for driving under the combined influence of alcohol or drugs and for two counts of possession of a controlled substance. On February 1, 2001, Rechtenbach moved to suppress the evidence, alleging that it was seized in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Section 11 of Article VI of the South Dakota Constitution. The trial court granted the motion to suppress on March 6, 2001.

STANDARD OF REVIEW

[¶ 6.] We have recently clarified the standard of review for a trial court’s motion to suppress:

A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo. We review findings of fact under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law de novo.

State v. Hodges, 2001 SD 93,¶ 8, 631 N.W.2d 206, 209 (internal citations omitted). Since the facts are not in dispute, this appeal is subject to de novo review.

ANALYSIS

[¶ 7.] The trial court reached its decision to suppress based on the initial stop of Rechtenbach. The trial court applied the test from New York v. Burger, 482 U.S. 691, 702-3, 107 S.Ct. 2636, 2644, 96 L.Ed.2d 601, 614 (1987). The Burger test determines the constitutionality of warrantless inspections of “closely regulated” industries. The three prongs of the test are as follows:

First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made. Second, the war-rantless inspections must be “necessary to further [the] regulatory scheme.” ... Finally, “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] pro-vid[e] a constitutionally adequate substitute for a warrant.” In other words, the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to law and has a properly defined scope, and it must limit the discretion of the inspecting officers.

Id. at 702-3, 107 S.Ct. 2636, 96 L.Ed.2d 601 (internal citations omitted).

[¶ 8.] The trial court held that the first and second prongs of the Burger test were satisfied, but not the third prong because there was no definitive statutory scheme that performed the functions of a warrant. The trial court noted that there was no limitation to the time, place and scope of the investigative stop conducted by Swets. Accordingly, the issue on appeal is whether the regulatory scheme provides an adequate substitute for a warrant.

[¶ 9.] SDCL 49-28-66 provides, in pertinent part, that “any law enforcement officer may require the driver of a commercial vehicle to stop a vehicle at any time for inspection to determine whether the provisions of this chapter are being complied with.” (emphasis added). SDCL 32-2-7 provides:

Agents, patrol officers, motor carrier enforcement officers, and motor carrier inspectors of the Department of Commerce and Regulation shall assist in the enforcement of all laws, police regulations, and rules governing motor vehicles and motor carriers over and upon the highways of this state. The agents, patrol officers, motor carrier enforcement officers, and motor carrier inspectors may stop any vehicle or carrier to examine, measure, or weigh the vehicle ... The agents, patrol officers, motor carrier enforcement officers, and motor carrier inspectors may examine any bill-of-lading, registration, license, or permit to determine if the motor carrier is properly registered, licensed, or permitted ....

(emphasis added).

[¶ 10.] The trial court concluded that “SDCL 32-2-7 would seem to limit the .scope of what may be inspected, however there does not seem to be any limits on the time and place of said search.” The court further stated SDCL 49-28-66 and 32-2-7 fail to provide the necessary guidelines for an officer to determine which vehicle to stop. The trial court relied on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) and concluded, “[i]n the case at hand there are certainly alternative and less intrusive means of making sure a commercial driver’s paperwork is in order. Since SDCL 49-28 does not provide a constitutionally adequate substitute for a warrant, I must suppress all evidence discovered after the illegal stop.”

[¶ 11.] In Prouse the United States Supreme Court upheld a trial court’s suppression of evidence seized during a “routine” stop of an individual in a non-commercial automobile to check his driver’s license and registration. The Supreme Court held that the stop and detention were unreasonable under the Fourth Amendment. 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673-74. However, in Prouse the defendant was not operating a commercial vehicle; he was driving his own automobile. Prouse stands for the proposition that a stop of a private individual in a non-commercial automobile must be based on articulable and reasonable suspicion. Id.

[¶ 12.] This case is different from Prouse. Non-commercial automobile drivers only need a driver’s license, insurance and registration. They operate vehicles which weigh one or two tons, carry limited numbers of passengers and limited cargo. By contrast, truck drivers operate large, long vehicles which may weigh many tons and haul huge loads. The big rigs impair the condition of the road if they are overweight and the safety of other traffic if not properly equipped and properly driven. To ensure public safety and to prevent highway damage, the trucking industry is “closely regulated” by both state and federal governments.

[¶ 13.] To effectively regulate the trucking industry, state troopers need to make random stops. Ports of entry, inspection stations and roadblocks have only limited effectiveness. Citizen’s band (CB) radios, cell phones and other modern technology allow truckers to communicate enforcement locations and to either remedy violations or avoid inspection sites. See State v. Crum, 270 Kan. 870, 19 P.3d 172, 177-78 (2001) (citing State v. Williams, 8 Kan.App.2d 14, 648 P.2d 1156, 1161 (1982)).

[¶ 14.] Truck drivers know they may be stopped for inspections at any time. Not only is this the practice nationwide, but South Dakota state law clearly states that a commercial vehicle may be stopped at “any time.” SDCL 49-28-66. SDCL 32-2-7 limits the stop to “examine any bill-of-lading, registration, license, or permit to determine if the motor carrier is properly registered, licensed, or permitted and if the load transported is an amount permitted....”

[¶ 15.] The trial court agreed that the scope of the search is limited but believed there were no limitations as to time and place. However, SDCL 32-2-7 applies only to motor carriers “upon the highways of this state.” Troopers cannot go into garages or warehouses or otherwise make off-road inspections under this statute. Therefore, the place of inspection is sufficiently limited.

[¶ 16.] Although it almost begs the question to say that “any time a truck is on the road” is a limitation, “any time” is limited, to only those times when trucks are on the road. Troopers cannot inspect trucks at times when they are not on the road. Commercial trucks operate twenty-four hours per day, seven days per week. The State has little control over when trucks will be on the highway or what routes the drivers will take. If stops cannot be made at “any time” truck drivers would be free to violate the law and regulations with impunity. Therefore, the time of the inspection is also sufficiently limited.

[¶ 17.] This Court previously applied Burger to the trucking industry in 'South Dakota in two prior cases. In Ritter v. Johnson, 465 N.W.2d 196 (S.D.1991) an employee of the Motor Carrier Division of the South Dakota Highway Patrol ordered the driver of a truck who was hauling rock to turn around and proceed to a portable weigh station. In considering the driver’s § 1983 claim, this Court stated,

such a seizure is clearly not an unreasonable seizure in view of the “closely regulated” nature of the trucking industry. The state has a “substantial interest? in enforcing its truck inspection regulatory scheme; warrantless inspections are “necessary to further the regulatory scheme”; and there is sufficient “certainty and regularity” in the application of the regularity scheme to provide a “constitutionally adequate substitute for a warrant.”

Id. at 199-200 (quoting Burger, 482 U.S. at 702-3, 107 S.Ct. at 2643-44, 96 L.Ed.2d at 614).

[¶ 18.] This Court also considered a regulatory stop in State v. Barton, 2001 SD 52, 625 N.W.2d 275. In Barton the defendant was stopped while driving a tractor that was pulling a large grain cart. The defendant was pulled over to determine whether the vehicle was overweight. While this Court found that reasonable suspicion existed for the stop under the facts of the case, the Court also noted that reasonable suspicion was not necessary for a stop given the “closely regulated” nature of the trucking industry. Id. at ¶ 12, 625 N.W.2d at 278-79.

[¶ 19.] Rechtenbach was stopped to effectuate an inspection of the “closely regulated” trucking industry. Articulable and reasonable suspicion is not necessary for administrative stops and searches of “closely regulated” industries. The fact that evidence of criminal activity was uncovered as a result of the stop does not render the stop or the seizure of the evidence unconstitutional. As the Burger Court noted, “[n]or do we think that this administrative scheme is unconstitutional simply because ... an inspecting officer may discover evidence of crimes, besides violations of the scheme itself.... The discovery of evidence of crimes in the course of an otherwise proper administrative inspection does not render that search illegal or the administrative scheme suspect.” Burger, 482 U.S. at 716, 107 S.Ct. at 2651, 96 L.Ed.2d at 622-23.

[¶ 20.] We disagree with the trial court and conclude that South Dakota statutes provide adequate limits on what is to be inspected, and on when and where the inspection is to take place. In this case, the stop, search and seizure complied with SDCL 49-28-66, 32-2-7 and the three-pronged test articulated in Burger. Therefore the stop, search and seizure of the evidence was constitutional. The trial court’s order of suppression is reversed, and this case is remanded for further proceedings consistent with this opinion.

[¶ 21.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 22.] SABERS and AMUNDSON, Justices, dissent.

AMUNDSON, Justice

(dissenting).

[¶ 23.] I respectfully dissent.

[¶ 24.] Although the Burger Court appears to have been opening the door for random inspections of highly regulated businesses, such roving searches should not be justified in the situation at hand. First, I do not believe the Burger requirement, that a statute permitting warrant-less searches of regulated business must carefully limit the discretion of inspectors in “time, place and scope[,]” has been met. Burger, 482 U.S. at 703, 107 S.Ct. at 2644, 96 L.Ed.2d 601. Neither SDCL 46-28-66 nor SDCL 32-2-7 limits the time, place or scope of the random search that took place in this case. In fact, the conference opinion points out that Swets, of his own volition, decided to focus his attention on commercial vehicles. He then, at random, stopped Rechtenbach’s truck to check his logbook. The search escalated from a random logbook check, into a search of Re-chtenbach’s person, and ultimately resulted in a fishing expedition for drugs. This should not be how we follow the United States Supreme Court’s call for limiting “the discretion of the inspectors ... ‘carefully in time, place and scope.’ ” See id.

[¶ 25.] Additionally, even if one agrees that the Fourth Amendment of the federal constitution permits these roving searches pursuant to Burger, we are clearly given the right to grant greater protections under our state constitution.

There can be no doubt that this court has the power to provide an individual with greater protection under the state constitution than does the United States Supreme Court under the federal constitution. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). This court is the final authority on interpretation and enforcement of the South Dakota Constitution. We have always assumed the independent nature of our state constitution regardless of any similarity between the language of the document and the federal constitution.

State v. Opperman, 247 N.W.2d 673, 674 (S.D.1976). In Opperman we were addressing the same constitutional issue— searches and seizures. Despite the similar language in the state and federal constitution regarding this important issue, we expounded beyond the bounds of the federal protections to ensure our state citizens are protected from unreasonable searches and seizures.

Admittedly the language of Article VI, § 11 is almost identical to that found in the Fourth Amendment; however, we have the right to construe our state constitutional provision in accordance with what we conceive to be its plain meaning. We find that logic and sound regard for the purposes of the protection afforded by [South Dakota Constitution], Art. VI, § 11 warrant a higher standard of protection for the individual in this instance than the United States Supreme Court found necessary under the Fourth Amendment.

Id. at 674-75.

[¶ 26.] In People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 593 N.E.2d 1328, 1339 (1992), the New York Court of Appeals chose to surpass the holding in Burger and provide more protection under the state constitution than was provided by the federal constitution. In Scott the court held that the “ ‘administrative search’ exception to the Fourth Amendment’s probable cause and warrant requirement cannot be invoked where ... the search is ‘undertaken solely to uncover evidence of criminality’ and the underlying regulatory scheme is ‘in reality, designed simply to give the police an expedient means of enforcing penal sanctions.’ ” Id at 1343. The court further articulated its purpose in providing broader search and seizure protection:

Obviously, the government’s interest in law enforcement is always, by definition, ‘substantial,’ and tools such as unannounced general inspections, without judicial supervision or regulatory accountability, are always helpful in detecting and deterring crime. If these were the only criteria for determining when citizens’ privacy rights may be curtailed there would thus be few, if any, situations in which the protections of [our state constitutional article on unreasonable search and seizure] would operate. Indeed, the very purpose of including such protections in our [c]onstitution was to provide a counterbalancing check on what may be-done to individual citizens in the name of governmental goals.
Our responsibility in the judicial branch is not to respond to these temporary crises or to shape the law so as to advance the goals of law enforcement, but rather to stand as a fixed citadel for constitutional rights, safeguarding them against those who would dismantle our system of ordered liberty in favor of a system of wee-kept order alone. As has recently been observed, the present crisis will, undoubtedly, abate but the precedents we create now will long endure .... [I]t suffices to observe, as Benjamin Franklin did some 200 years ago, that ‘those who give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety-’

Id. at 1344-45.

[¶ 27.] Based on the above reasoning, I would affirm the trial court. The rationale of the majority authorizes the Legislature to put into effect a generalized wholesale exception to constitutional rights established by our forefathers. This is a case where a random stop was for the sole purpose of resolving the query, “What should I do today to give ‘Rufus, the drug dog’ some exercise?”

[¶ 28.] Therefore, I dissent.

[¶ 29.] SABERS, Justice, joins this dissent.

      . The Fourth and Fourteenth Amendments to the United States Constitution, and Section 11 of Article VI of the South Dakota Constitution, protect individuals against unreasonable searches and seizures.

      . Barton was decided after the trial court's decision in this case.