author: KAPSNER, Justice.

text:
    2002 ND 101
    Michelle HANSEN, Stacey Hansen, and Michelle Hansen, as Personal Representative of the Estates of Gordon and Barbara Erickstad, Plaintiffs and Appellants, v. Wayne SCOTT, Ray Parra, Rey Selvera, William H. Brooks, Cathy Doyle, Veronica Ballard, Carl Jeffries, Ethel White, Larry Hermance, Cynthia Lyons, Defendants and Appellees, Robert R. Lawrence, John Doe # 1, John Doe # 2, John Doe # 3, John Doe # 4, and John Doe # 5, individually, Defendants.
    No. 20010195.
    Supreme Court of North Dakota.
    June 10, 2002.

      Timothy Q. Purdon (argued) and Thomas A. Dickson (on brief), Dickson & Pur-don, Bismarck, N.D., for plaintiffs and appellants.
    Charles K. Eldred (argued), Assistant Attorney General, Austin, TX and Darnel L. Hovland (appeared), Smith Bakke Hov-land & Oppegard, Bismarck, N.D., for defendants and appellees.
    Ken R. Sorenson, Assistant Attorney General, Bismarck, N.D., for amicus curiae.
   KAPSNER, Justice.

[¶ 1] Michelle Hansen, individually and as personal representative of the estates of Gordon and Barbara Erickstad, and Stacey Hansen, the Erickstads’ daughters, (“daughters”) appeal from a partial judgment dismissing for lack of personal jurisdiction their wrongful death, survivorship, and 42 U.S.C. § 1983 claims against employees of the Texas Department of Criminal Justice (“Texas defendants”). We hold the daughters’ claims against the Texas defendants state a prima facie tort under N.D.R.Civ.P. 4(b)(2)(C), and the exercise of personal jurisdiction over the Texas defendants would not offend traditional notions of substantial justice, fair play, or due process of law. We reverse and remand for further proceedings.

I

[¶2] The daughters brought wrongful death and survivorship claims against Robert Lawrence, and wrongful death, surviv-orship, and 42 U.S.C. § 1988 claims against the Texas defendants in an action stemming from the September 16, 1998 murders of Gordon and Barbara Erickstad by Lawrence and Brian Erickstad. See State v. Erickstad, 2000 ND 202, 620 N.W.2d 136. At the time of the murders, Lawrence was a parolee from Texas being supervised in North Dakota under N.D.C.C. ch. 12-56, the Interstate Compact for Out-of-State Parolee Supervision.

[¶ 3] In May 1997, North Dakota accepted Lawrence, a Texas resident, for parole supervision in North Dakota. In June 1997, Lawrence was released from custody in Texas, and he began living with his sister in Mandan, where he was supervised by North Dakota parole officials under the Interstate Compact. In October 1997, Lawrence was convicted of making a false report to law enforcement officials in Morton County, and in December 1997, North Dakota parole officials notified Texas parole officials about Lawrence’s North Dakota conviction and that a second similar charge and driving under suspension and exhibition driving charges were pending against him. In December 1997, North Dakota parole officials also notified Texas parole officials that Lawrence had moved and his new address was not known. In February 1998, Texas parole officials issued a pre-revocation warrant authorizing North Dakota officials to arrest Lawrence. In February 1998, Lawrence was convicted of making a false report to law enforcement officers in Bur-leigh County, and he was sentenced to one year in prison with three months suspended. In March 1998, Texas dropped its “hold” and its revocation proceedings against Lawrence because of his North Dakota conviction and sentence. On August 24, 1998, Lawrence was released from prison, but he failed to contact his North Dakota parole officer within 24 hours. On September 11, 1998, North Dakota parole officials informed Texas parole officials that Lawrence had absconded from supervision, and North Dakota was closing its case and recommending Texas issue a warrant for Lawrence’s arrest and return to Texas for revocation proceedings. Gordon and Barbara Erick-stad were murdered on September 16, 1998.

[¶ 4] The daughters brought wrongful death and survivorship claims against Lawrence. The daughters also brought wrongful death, survivorship, and 42 U.S.C. § 1983 claims against the Texas defendants, alleging Lawrence had an extensive criminal record in Texas dating back to 1989 and

when providing transfer investigation information to North Dakota Parole and Probation officials, [the Texas defendants] unreasonably and recklessly failed to fully disclose and provide the background and prior criminal history of Defendant Robert Lawrence in violation of the applicable standard of eare[,]
while administering the Interstate Compact agreement between Texas and North Dakota in regards to Defendant Robert Lawrence, [the Texas defendants] unreasonably and recklessly failed to comply with the standard of care in supervising Defendant Robert Lawrence as set forth by the applicable policies and procedures governing supervision of inmates on parole, including but not limited to, the policies and procedures required and developed by the Parole and Probation Compact Administrators’ Association!,]
[and] in developing and implementing the policies and procedures adopted and utilized by the Texas Department of Criminal Justice for determining when a parolee should be returned from a receiving state due to violations of his or her parole, [the Texas defendants] acted in an unreasonable and reckless manner in violation of the applicable standard of care.

[¶ 5] The Texas defendants made a special appearance to contest North Dakota’s exercise of personal jurisdiction over them. The trial court granted the Texas defendants’ motion to dismiss for lack of personal jurisdiction under N.D.R.Civ.P. 4(b)(2)(C), concluding that, although the Texas defendants had sufficient minimum contacts with North Dakota to satisfy due process, the daughters’ claims against the Texas defendants did not allege a tort because the Texas defendants did not take charge of Lawrence under Restatement (Second) of Torts § 319 (1965) and therefore did not have a tort duty to the daughters for Lawrence’s criminal acts. The daughters’ wrongful death and survivor-ship claims against Lawrence have not been resolved and are still pending. The trial court granted the daughters’ request for certification of the dismissal of the Texas defendants as a final judgment under N.D.R.Civ.P. 54(b), and the daughters appealed.

II

[¶ 6] The Texas defendants argue the trial court improvidently entered a N.D.R.Civ.P. 54(b) certification. The daughters assert the Texas defendants waived their objection to the Rule 54(b) certification by not opposing the daughters’ request for certification in the trial court.

[¶ 7] We are not bound by a trial court’s certification under N.D.R.Civ.P. 54(b), and we may sua sponte review the certification. Mitchell v. Sanborn, 586 N.W.2d 678, 681 (N.D.1995). Because we may review a Rule 54(b) certification on our own motion, we reject the daughters’ claim that the Texas defendants waived their objection to the certification.

[¶ 8] Rule 54(b), N.D.R.CÍV.P., authorizes a trial court to direct entry of a final judgment adjudicating fewer than all of the claims, or the rights and liabilities of fewer than all of the parties upon “express determination that there is no just reason for delay” and “express direction for the entry of judgment.” We review a trial court’s Rule 54(b) certification under the abuse-of-discretion standard. Nodak Mut. Farm Bur. v. Kosmatka, 2000 ND 210, ¶ 4, 619 N.W.2d 852; Symington v. Walle Mut. Ins. Co., 1997 ND 93, ¶ 5, 568 N.W.2d 400; Sickler v. Kirkwood, 1997 ND 40, ¶ 5, 560 N.W.2d 532, 533; Wyatt v. Adams, 551 N.W.2d 775, 777 (N.D.1996); Ingalls v. Glass Unlimited, Inc., 529 N.W.2d 872, 873 (N.D.1995); Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D.1995); Bulman v. Hulstrand Const. Co., Inc., 503 N.W.2d 240, 241 (N.D.1993).

[¶ 9] The trial court’s discretion must be measured against the “interest of sound judicial administration.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956)). In Union State Bank v. Woell, 357 N.W.2d 234, 236 (N.D.1984), we noted an increase in Rule 54(b) certifications and said they should not be routinely granted. We cited Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir.1975), for a non-inclusive list of relevant factors for a trial court to consider in deciding a Rule 54(b) certification:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Woell, at 238.

[¶ 10] A common thread in our cases reviewing Rule 54(b) certifications is our strong policy against piecemeal appeals, and our aversion to rendering advisory opinions in cases where future developments in the trial court may moot the issues raised for appellate review. See Kosmatka, 2000 ND 210, ¶¶ 10-13, 619 N.W.2d 852; Symington, 1997 ND 93, ¶ 8, 563 N.W.2d 400; Wyatt, 551 N.W.2d at 777; Ingalls, 529 N.W.2d at 873; Gessner, 529 N.W.2d at 870; Bulman, 503 N.W.2d at 241-42.

[¶ 11] We have held a trial court does not abuse its discretion in granting a Rule 54(b) certification if the issues raised in the appeal will not be mooted by future developments in the trial court. Symington, 1997 ND 93, ¶8, 563 N.W.2d 400. In Symington, at ¶ 3, an insured sued his agent and his insurer regarding coverage, under a farm property policy. The insured alleged the insurer’s farm policy provided coverage for a loss and, alternatively, if the policy did not provide coverage, the agent had negligently failed to procure coverage and had misrepresented that coverage had been provided. Id. The trial court granted partial summary judgment for the insurer, concluding the policy did not provide coverage for the insured’s loss. Id. at ¶ 4. The trial court certified the partial summary judgment on the claim against the insurer under N.D.R.Civ.P. 54(b) without deciding the claim against the agent. We concluded the trial court did not abuse its discretion in granting the Rule 54(b) certification:

No matter how those remaining contingent claims against [the agent] are decided, the coverage issues raised in this appeal will always need to be resolved and will never be mooted by future developments in the trial court. See Wyatt, 551 N.W.2d at 777; Gessner, 529 N.W.2d at 870. Instead, the converse is true. A decision on [the insured’s] remaining contingent claims against [the agent] will be unnecessary if there is coverage under [the insurer’s] policy. In this posture, our appellate resolution of the coverage issue now will not result in an advisory opinion. Under the framework of Woell, we conclude the trial court did not abuse its discretion in granting Rule 54(b) certification to allow appellate determination of the coverage issue before further proceedings on the contingent claims against [the agent].

Symington, at ¶ 8.

[¶ 12] Here, the substantive issues in the daughters’ lawsuit involve the determination and allocation of fault for their parents’ deaths under our modified comparative fault statutes, N.D.C.C. ch. 32-03.2. Those provisions were enacted in 1987 and significantly revised tort liability in North Dakota, shifting the focus from traditional tort doctrines to the singular inclusive concept of “fault.” See Rodenburg v. Fargo-Moorhead Young Men’s Christian Ass’n, 2001 ND 139, ¶ 25, 632 N.W.2d 407; Haff v. Hettich, 1999 ND 94, ¶ 14, 593 N.W.2d 383; Hurt v. Freeland, 1999 ND 12, ¶ 20, 589 N.W.2d 551; Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994). Under N.D.C.C. § 32-03.2-01, fault includes “acts or omissions that are in any measure negligent or reckless towards the person or property of the actor or others, or that subject a person to tort liability.” Section 32-03.2-02, N.D.C.C. provides:

Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering. The court may, and when requested by any party, shall direct the jury to find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury. The court shall then reduce the amount of such damages in proportion to the amount of fault attributable to the person recovering. When two or more parties are found to have contributed to the injury, the liability of each party is several only, and is not joint, and each party is liable only for the amount of damages attributable to the percentage of fault of that party, except that any persons who act in concert in committing a tortious act or aid or encourage the act, or ratifies or adopts the act for their benefit, are jointly liable for all damages attributable to their combined percentage of fault. Under this section, fault includes negligence, malpractice, absolute liability, dram shop liability, failure to warn, reckless or willful conduct, assumption of risk, misuse of product, failure to avoid injury, and product liability, including product liability involving negligence or strict liability or breach of warranty for product defect.

[¶ 13] Under N.D.C.C. §§ 32-03.2-01 and 32-03.2-02, a negligent tort-feasor’s conduct is compared with an intentional tortfeasor’s conduct, and absent “in concert” action, liability is several, not joint, with each tortfeasor liable only for the amount of fault allocated to that tort-feasor. See Rodenburg, 2001 ND 139, ¶ 26, 632 N.W.2d 407. Section 32-03.2-02, N.D.C.C., authorizes the trial court to instruct the jury to “find separate special verdicts determining the amount of damages and the percentage of fault attributable to each person, whether or not a party, who contributed to the injury.” See Hoff, 1999 ND 94, ¶¶2-3, 15-17, 593 N.W.2d 383. That language contemplates an “empty chair” defense, which specifically permits an allocation of fault to each person who contributed to an injury even though that person may not be a party to the action. See V. Schwartz, Comparative Negligence § 15 — 5(a) (3d ed.1994). See also Cornell Harbison Excavating, Inc. v. May, 546 N.E.2d 1186, 1187 (Ind.1989) (in order for culpable nonparty to be assigned fault, nonparty must be subject to liability by civil action); Brown v. Keill, 580 P.2d 867, 876 (Kan.1978) (even though parties cannot be joined formally as litigants or held legally responsible for proportionate fault, statute imposes liability based on proportionate fault of all parties to the occurrence which gave rise to the injuries and damages); Lines v. Ryan, 272 N.W.2d 896, 902-03 (Minn.1978) (in submitting comparative fault to jury, trial court must submit names of all persons whose conduct could be found to be negligent and contributing as a cause to the plaintiffs injury or to the accident); Kirby Bldg. Sys. v. Mineral Exploration Co., 704 P.2d 1266, 1272 (Wyo.1985) (jury must consider negligence not only of all the parties but all the participants in the transaction which produced the injuries sued upon).

[¶ 14] Those authorities suggest an “empty chair” defense is applicable when there is, or may be, a viable theory for assessing fault against a nonparty, i.e., a “person” under N.D.C.C. § 32-03.2-02, but for some reason that person is not a party to the lawsuit or recovery is not permitted against that person. Our cases about potential mootness under N.D.R.Civ.P. 54(b) suggest an analogous principle. See Gessner, 529 N.W.2d at 869-70 (improper service of process on one defendant); Ingalls, 529 N.W.2d at 872-73 (same); Bulman, 503 N.W.2d at 241-42 (sovereign immunity defense).

[¶ 15] As this appeal is presently postured, the trial court has ruled that the Texas defendants had no duty to the daughters, and that the daughters’ allegations against the Texas defendants do not subject them to tort liability. The Texas defendants therefore cannot be said to have “contributed to the injury” within the meaning of N.D.C.C. § 32-03.2-02 based upon the trial court’s ruling on the issue of duty. Although Lawrence may be entitled to raise an “empty chair” defense against Brian Erickstad, in this posture Lawrence cannot raise an empty chair defense against the Texas defendants. Any evidence about the Texas defendants’ potential liability would be irrelevant, and the trial court would not be required to instruct the jury to determine a percentage of fault attributable to the Texas defendants. In this posture, no allocation of fault to the Texas defendants could occur, and a determination that Lawrence, or Lawrence and Brian Erickstad, were 100 percent at fault without a consideration of the potential fault of the Texas defendants would not render moot issues about the Texas defendants’ potential fault. Under those circumstances, any personal jurisdiction issues stemming from resolution of the Texas defendants’ duty will be present regardless of the outcome of the claims against Lawrence and will not be mooted or made advisory by future developments in the trial court. See Symington, 1997 ND 93, ¶ 8, 563 N.W.2d 400. We therefore conclude the trial court did not abuse its discretion in certifying the dismissal of the Texas defendants for lack of personal jurisdiction as final under N.D.R.Civ.P. 54(b).

Ill

[¶ 16] Under N.D.R.Civ.P. 4(b)(4), a court of this state may acquire personal jurisdiction over any person by service of process as provided in Rule 4, or by a voluntary general appearance. Rule 4(d)(3), N.D.R.Civ.P., provides methods for service of process on any person located outside the state if that person is subject to the personal jurisdiction of the courts of this state. We have said N.D.R.Civ.P. 4(b)(2) authorizes North Dakota courts to exercise personal jurisdiction over nonresident defendants to the fullest extent permitted by due process, and requires a two-prong determination for resolving the question of personal jurisdiction over nonresident defendants. Auction Effertz, Ltd. v. Schecher, 2000 ND 109, ¶ 6, 611 N.W.2d 173; Hust v. Northern Log, Inc., 297 N.W.2d 429, 431 (N.D.1980). First, the requirements of one of the applicable sub-paragraphs of N.D.R.Civ.P. 4(b)(2) must be satisfied, and second, the nonresident must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of substantial justice, fair play, or due process. Rodenburg, 2001 ND 139, ¶ 15, 632 N.W.2d 407; Schecher, at ¶ 6; Hust, at 431.

[¶ 17] The parties agree the basis for claiming personal jurisdiction over the Texas defendants is N.D.R.Civ.P. 4(b)(2)(C), which provides:

(b) Jurisdiction Over Person.
(2) Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:
(C) committing a tort within or without this state causing injury to another person or property within this state;

A

[¶ 18] Rule 4(b)(2)(C), N.D.R.Civ. P., authorizes the exercise of personal jurisdiction over a person who commits a tort within or without the state causing injury to another person or property within this state. In order to establish jurisdiction under N.D.R.CivJP. 4(b)(2)(C), a plaintiff need not prove a defendant committed a tort by a preponderance of evidence; rather, the plaintiff satisfies the burden as to the first prong of the personal jurisdiction test by establishing a prima facie cause of action. Falkirk Mining Co. v. Japan Steel Works, Ltd., 906 F.2d 369, 373 (8th Cir. 1990). See also Schecher, 2000 ND 109, ¶ 6, 611 N.W.2d 173 (under N.D.R.Civ.P. 4(b)(2)(A), transacting any business in this state given expansive meaning).

[¶ 19] In Falkirk, 906 F.2d at 373, the Eighth Circuit Court of Appeals considered a personal jurisdiction issue under N.D.R.Civ.P. 4(b)(2)(C) in the context of a plaintiffs allegation that a foreign corporation’s negligent casting and welding of a cam caused the cam to crack and damage a dragline in North Dakota. The court said “[wjithout deciding whether North Dakota would in fact permit [the plaintiff] to recover damages in tort for the failure of the cam, we hold that the North Dakota long-arm statute authorizes the exercise of jurisdiction [over the defendant] because [the plaintiff] has alleged a prima facie cause of action in tort sufficient to bring [the defendant] within the ambit of N.D.R.Civ.P. 4(b)(2)(C).” Id. The court expressed no opinion about whether North Dakota law would permit the plaintiff to recover damages in tort for the cracking of the cam itself, or whether North Dakota law would limit the plaintiff to contract remedies. Id. at n. 9.

[¶ 20] In Adden v. Middlebrooks, 688 F.2d 1147, 1154-56 (7th Cir.1982), the Seventh Circuit Court of Appeals considered an Illinois federal district court’s exercise of personal jurisdiction over nonresident Louisiana prison officials in a diversity action alleging the officials were hable for the conduct of Louisiana prison escapees who killed a person in Illinois. The court said Illinois law considered a tort to be committed where the injury occurred and recognized Illinois’ long-arm statute, which authorized personal jurisdiction for the commission of tortious acts within the state, was intended to extend jurisdiction over nonresidents to the extent permitted by due process. Id. at 1155. Although the court ultimately concluded the Louisiana officials’ contacts with Illinois were insufficient to satisfy due process under the minimum contacts prong of the personal jurisdiction framework, the court said because the victim’s death occurred in Illinois, the tortious act occurred there and the plaintiffs wrongful death claim fell within the reach of the Illinois long-arm statute. Id.

[¶ 21] In Hodgson v. Mississippi Dep’t of Corr., 963 F.Supp. 776, 795-97 (E.D.Wis.1997) a Wisconsin federal district court concluded it did not have personal jurisdiction over Mississippi prison officials for a murder in Wisconsin by a Mississippi parolee in Wisconsin under the Interstate Compact for Out-of-State Parolee Supervision. The district court rejected the plaintiffs claim for personal jurisdiction under:

subsection 801.05(3) of Wisconsin’s long-arm statute, which provides that Wisconsin can exercise personal jurisdiction “[i]n any action claiming injury to person or property within or without this state arising out of an act or omission within this state by the Defendant.” [The plaintiff] contends that the Defendants’ failure to warn Wisconsin authorities about [the parolee] caused [the plaintiffs] loss and that this omission occurred in Wisconsin. However, he has failed to cite any legal authority for his strained interpretation of this subsection. Any failure to warn or to comply with the Uniform Act for Out-of-State Parolee Supervision on the part of Lucas and Bennett would have occurred in Mississippi, so subsection 801.05(3) does not authorize personal jurisdiction over them. See Lincoln v. Seawright, 104 Wis.2d 4, 13, 310 N.W.2d 596, 600-01 (1981) (failure to warn about vicious dog shipped to Wisconsin occurred in sending state).

Hodgson, 963 F.Supp. at 796.

[¶ 22] The rationale of Hodgson is not applicable to this case, because N.D.R.Civ.P. 4(b)(2)(C) applies to “committing a tort within or without this state causing injury to another person or property within this state,” while the Wisconsin long-arm provision applies to torts “arising out of an act or omission within” Wisconsin. Hodgson, 963 F.Supp. at 796. See also Nelson v. Bulso, 149 F.3d 701, 702 (7th Cir.1998) (holding Tennessee lawyer did not commit any acts relevant to alleged torts of malicious prosecution, abuse of process, or defamation within Wisconsin).

[¶23] Both Falkirk and Adden apply a deferential review to whether a complaint states a prima facie case for purposes of a state’s long-arm statute. In analyzing a personal jurisdiction issue, we have also said a court must look at the facts alleged in the complaint in the light most favorable to the nonmoving party. Rodenburg, 2001 ND 139, ¶ 17, 632 N.W.2d 407. See Schecher, 2000 ND 109, ¶ 6, 611 N.W.2d '173 (expansive interpretation of transacting any business in this state under N.D.R.Civ.P. 4(b)(2)(A)) Cf. Rose v. United Equitable Ins. Co., 2001 ND 154, ¶ 10, 632 N.W.2d 429 (construing complaint in light most favorable to plaintiff on motion to dismiss for failure to state claim). Moreover, in diversity cases, many federal courts have held that when a state’s long-arm statute confers jurisdiction to the fullest extent permitted by due process, the two-part test for deciding personal jurisdiction collapses into the single question of whether due process would be violated by the exercise of personal jurisdiction over a nonresident defendant. Oriental Trading Co., Inc. v. Firetti, 236 F.3d 938, 943 (8th Cir.2001); IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir.1998); Aristech Chem. Int’l Ltd. v. Acrylic Fabricators Ltd., 138 F.3d 624, 627 (6th Cir.1998); Stover v. O’Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir.1996); Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir.1995); Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 612 (8th Cir.1994); Bell Paper Bos;, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir.1994); Ruston Gas Turbines, Inc. v. Donaldson Co., Inc., 9 F.3d 415, 418 (5th Cir.1993). See 4 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1068 p. 588 (2002). We have said N.D.R.Civ.P. 4(b)(2), was intended to authorize North Dakota courts to exercise personal jurisdiction over nonresident defendants to the fullest extent permitted by due process. Schecher, at ¶ 6; Hust, 297 N.W.2d at 431.

[¶ 24] Here, the daughters’ complaint alleges claims against the Texas defendants for wrongful death, survivor-ship, and constitutional violations under 42 U.S.C. § 1983- The daughters allege the Texas defendants unreasonably and recklessly failed to fully disclose Lawrence’s background and extensive criminal history when providing transfer information to North Dakota officials, the Texas defendants unreasonably and recklessly failed to comply with the appropriate standard of care under the applicable policies and procedures governing supervision of parolees, and the Texas defendants acted in an unreasonable and reckless manner in developing and implementing policies and procedures for determining when a parole violater should be returned from a receiving state to Texas. The daughters allege the Texas defendant’s conduct proximately caused the deaths of Gordon and Barbara Erickstad, which occurred in North Dakota. Under these allegations and in this posture, the daughters’ wrongful death and survivorship claims against the Texas defendants are sufficient to allege prima facie torts within or without this state causing injury to another person within this state under N.D.R.CivJP. 4(b)(2)(C). See Adden, 688 F.2d at 1155. We must therefore consider whether the exercise of personal jurisdiction over the Texas defendants comports with due process.

B

[¶ 25] The Texas defendants argue the trial court erred in deciding they had sufficient minimum contacts with North Dakota for the exercise of personal jurisdiction over them. They argue they were not required to file a cross-appeal to preserve this issue for review.

[¶ 26] In Stewart v. North Dakota Workers Comp. Bur., 1999 ND 174, ¶ 37, 599 N.W.2d 280(citations omitted), we said:

when the judgment below provides all of the relief sought by the appellee, it is unnecessary to file a cross-appeal. In such a case, the appellee may attempt to save the judgment by urging any ground asserted in the trial court. An appellee who fails to cross-appeal is only precluded from seeking greater relief than she received in the trial court.

[¶27] The relief granted by the trial court was a dismissal for lack of personal jurisdiction, which was the relief sought by the Texas defendants. Under Stewart, the Texas defendants are seeking the same relief, a dismissal for lack of personal jurisdiction, under their minimum contacts argument, and their failure to file a cross-appeal does not preclude them from now arguing the minimum contacts issue.

[¶28] The Texas defendants argue the exercise of personal jurisdiction over them violates due process, because they have insufficient contacts with North Dakota and the maintenance of this action against them offends traditional notions of fair play and substantial justice. They argue the minimum contacts concept of placing a product in the stream of commerce does not apply to their activities, which are mandated by the Interstate Compact for Out-of-State Parolee Supervision.

[¶ 29] Consistent with due process, a state may exercise personal jurisdiction over a nonresident defendant who is not present within the state when the nonresident defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the United States Supreme Court said in order to exercise personal jurisdiction, “it is essential in each case that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” In WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Court explained a critical part of the due process analysis is whether a nonresident defendant’s conduct and connection with the forum state is such that the defendant should reasonably anticipate being haled into court there.

[¶ 30] In Lumber Mart, Inc. v. Haas Intern. Sales & Serv., Inc., 269 N.W.2d 83, 88 (N.D.1978), we identified five factors for assessing personal jurisdiction over a nonresident defendant: (1) the nature and quality of a nonresident defendant’s contacts with the forum state; (2) the quantity of the nonresident defendant’s contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the forum state’s interest in providing a forum for its residents; and (5) the convenience of the parties. See also Falkirk, 906 F.2d at 374.

[¶ 31] In Adden, 688 F.2d at 1155-56, the Seventh Circuit Court of Appeals held an Illinois federal district court did not have personal jurisdiction over nonresident Louisiana prison officials in a diversity action alleging the prison officials were liable in tort for the criminal acts of two Louisiana prison escapees who killed a person in Illinois. The court said the Louisiana prison officials:

did not purposefully conduct any. activities within Illinois nor could they reasonably anticipate being forced to defend a negligence suit there. An escaped prisoner might flee to virtually any state and commit a tortious act there. This is especially true when six weeks have elapsed between the time of escape and the commission of the tort. The fact that apparently one of the two escapees in this case was originally from Illinois does not alter this analysis. If it did, we would be concluding that Department of Corrections officials should expect to be sued in any state which was at some point the “home” of a person incarcerated in Louisiana.

Id. at 1156.

[¶ 32] In Perez Bustillo v. State, 718 S.W.2d 844, 847 (Tex.App.1986), the Texas Court of Appeals reached a similar result regarding the exercise of personal jurisdiction over nonresident Louisiana prison officials for a Louisiana prison escapee’s automobile accident in Texas:

The evidence presented at the hearing shows that [the prison officials] did not purposefully conduct any activities within the State of Texas. Any tortious acts on their part were not such that they could reasonably anticipate being forced to defend a negligence suit in Texas. See Adden v. Middlebrooks, 688 F.2d 1147 (7th Cir.1982). We do not believe that [the prison officials] could reasonably forsee being haled into court in Texas under these circumstances. An escaped prisoner might likely commit a tortious act in any state to which he might flee. We do not believe that, merely because Texas and Louisiana have common borders and reciprocal parole and extradition agreements, a nexus exists between these contacts and the tort allegedly committed by [the escapee] in this case. [The prison officials] have shown that no minimum contacts exist between them and the forum state.

[¶ 33] In Hodgson, 963 F.Supp. at 795-97, a Wisconsin federal district court concluded it did not have personal jurisdiction over nonresident Mississippi officials under a long-arm provision authorizing jurisdiction over nonresident defendants who were engaged in “substantial and not isolated activities” in Wisconsin. The court rejected the plaintiffs claim that evidence of twenty-one requests for transfers of parolees from Mississippi to Wisconsin represented “substantial and not isolated activities” in Wisconsin:

The Plaintiff has presented nothing to show that Defendants Lucas or Bennett personally handled any of the twenty-one requests to transfer prisoners from Mississippi to Wisconsin. Even if they had, these requests cannot be characterized as acts by which the Defendants purposefully availed themselves of the privilege of conducting activities within Wisconsin or acts which should have reasonably led them to anticipate being haled into court here. See World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958). Based on this showing, the court concludes that the Plaintiffs attempt to establish minimum contacts between Lucas, Bennett and Wisconsin is inadequate and that personal jurisdiction over Lucas and Bennett is not available under subsection 801.05(l)(d). See Adden v. Middlebrooks, 688 F.2d 1147, 1156 (7th Cir. 1982) (concluding that the federal court in Illinois did not have personal jurisdiction over Louisiana’s Director of Department of Corrections or the Superintendent of Louisiana Correctional and Industrial School who were sued for a wrongful death committed in Illinois by two escaped prisoners from Louisiana).

Hodgson, 963 F.Supp. at 796.

[¶ 34] We are not persuaded by the Hodgson court’s reliance on Adden, a case involving a prison escapee, to support its conclusion that Mississippi parole officials did not conduct activities in Wisconsin. Hodgson, 963 F.Supp. at 796. In our view, there is a significant difference between contacts in the case of a prison escapee and contacts between parole officials in a sending and in a receiving state regarding supervision of a parolee in a receiving state. As Adden recognized in the context of a prison escapee, the nonresident Louisiana officials “did not purposefully conduct any activities within Illinois nor could they reasonably anticipate being forced to defend a negligence suit there. An escaped prisoner might flee to virtually any state and commit a tortious act there.” Adden, 688 F.2d at 1156.

[¶ 35] Here, pursuant to Lawrence’s request, the Texas defendants specifically asked North Dakota authorities to accept Lawrence for parole supervision. Cf. Schecher, 2000 ND 109, ¶8, 611 N.W.2d 173 (holding nonresident conducted business in this state when he initiated contact by phone call to a North Dakota business and ultimately reached a contractual agreement to have the business provide agency services on nonresident’s behalf). North Dakota consented to Lawrence residing here while on parole in Texas. Under the Interstate Compact for Out-of-State Parolee Supervision, Texas, as a sending state, was authorized to permit Lawrence to reside in North Dakota, a receiving state, if (1) Lawrence was a resident of or had family residing within North Dakota and could obtain employment in North Dakota, or (2) North Dakota consented to Lawrence being sent here. N.D.C.C. § 12-56-01(l)(a) and (b). Lawrence was not a resident of North Dakota for purposes of the compact, see N.D.C.C. § 12-56-02, and it is not clear the degree of discretion that North Dakota had to accept Lawrence from Texas. The record indicates Lawrence’s supervision plan indicated he would live with a sister in Mandan, but the record does not reflect Lawrence’s employment prospects. The record also reflects North Dakota consented to Lawrence residing here while on parole. Whether North Dakota may have had discretion to refuse to accept Lawrence is not necessarily controlling, however, because, assuming the truth of the allegations in the daughters’ complaint, the Texas defendants unreasonably and recklessly failed to disclose Lawrence’s background and extensive criminal history when providing transfer information to North Dakota. The alleged lack of information provided to North Dakota parole officials could affect their degree of supervision once Lawrence arrived in North Dakota. See N.D.C.C. § 12-56-01(2) (“receiving state will assume the duties of ... supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.”)

[¶ 86] Assuming the truth of the allegations in the complaint, the Texas defendants effectively sent a dangerous parolee to North Dakota without fully disclosing his dangerous propensities. See Rodenburg, 2001 ND 139, ¶¶ 19-22, 632 N.W.2d 407 (authorizing exercise of personal jurisdiction over nonresident who supplied gun to person who traveled to North Dakota and used gun in an attempted murder). Cf. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406-10 (N.D.1994) (holding manufacturer has post-sale duty to warn about. dangers associated with products); McLean v. Kirby Co., 490 N.W.2d 229, 233-34 (N.D.1992) (holding manufacturer has duty to customer for rape by manufacturer’s independent distributor). The Texas defendants’ affirmative action of asking North Dakota to supervise Lawrence, a Texas parolee, constitutes activity in which they purposely availed themselves of the privilege of sending Lawrence to North Dakota. After Lawrence arrived in North Dakota, there were continuing contacts between Texas and North Dakota regarding Lawrence’s activities in North Dakota. The Texas defendants’ contacts with North Dakota stem from their parole relationship with Lawrence, the alleged instrumentality of the daughters’ claims. The sending state, Texas, and the receiving state, North Dakota, operated with a clear understanding that Lawrence would be permitted to live in North Dakota while serving his Texas parole. The Texas defendants’ alleged conduct and activities with North Dakota regarding Lawrence are such that they could reasonably anticipate being haled into court in North Dakota.

[¶ 37] Although the placement of a Texas parolee in North Dakota for supervision is not a commercial transaction, the Texas defendants unequivocally directed activity regarding Lawrence to North Dakota. See Rodenburg, 2001 ND 139, ¶¶ 18-19, 632 N.W.2d 407. The daughters’ claims arise out of Lawrence’s actions and the Texas defendants’ contacts with North Dakota, and we reject the Texas defendants’ claim that contacts mandated by the Interstate Compact should hot be considered for purposes of the exercise of personal jurisdiction. Rather, we believe those contacts militate in favor of the exercise of personal jurisdiction. Viewing the allegations in the complaint in the light most favorable to the daughters, we conclude the exercise of personal jurisdiction over the Texas defendants does not offend traditional notions of substantial justice, fair play, or due process of law.

[¶ 38] We reverse the dismissal of the daughters’ action against the Texas defendants for lack of personal jurisdiction, and we remand for proceedings consistent with this opinion.

[II39] BRUCE BOHLMAN, D.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and WILLIAM A. NEUMANN, JJ., concur.

I concur in the result, GERALD W. VANDE WALLE, C.J.

[¶ 40] The Honorable Bruce E. Bohl-man, D.J., sitting in place of Sandstrom, J., disqualified.

      . The trial court decided the daughters' allegations did not state a claim in tort, because the Texas defendants did not take charge of Lawrence within the meaning of Restatement (Second) of Torts § 319 (1965) and therefore did not have a tort duty for Lawrence's crimi-hal acts. The parties have framed the issue as whether North Dakota law imposes a tort duty on parole officials. Relying on Taggart v. State, 118 Wash.2d 195, 822 P.2d 243 (1992), the daughters argue North Dakota law should impose a duty on parole officials charged with the parole of dangerous criminals like Lawrence. Relying on the Restatement (Second) of Torts §§ 315 and 319 (1965) and the majority view expressed in cases like Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677 (1998), the Texas defendants respond North Dakota law does not recognize a tort duty in this case because parole officials do not take charge of parolees within the meaning of § 319.
      However, a tort duty may be articulated in broader terms than the parties have argued. Under N.D.C.C. § 9-10-01, "[e]very person is bound without contract to abstain from injuring the person or property of another or infringing upon any of his rights.” See Dinger v. Strata Corp., 2000 ND 41, ¶ 16, 607 N.W.2d 886. Section 9-10-06, N.D.C.C., provides "[ejveiyone is responsible ... for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person.” See Dinger, at ¶ 16. “Every person has a duty to act reasonably to protect others from harm." Barsness v. General Diesel & Equip. Co., Inc., 383 N.W.2d 840, 845 n. 5 (N.D.1986).
      Here, this case is in the posture of a motion to dismiss for lack of personal jurisdiction, and we hold only that the daughters’ claims allege prima facie torts under N.D.R.CÍV.P. 4(b)(2)(C). In this posture, any determination about the extent of the Texas defendants' duty, the interplay of discretionary and ministerial acts, and any possible immunity defenses is premature.

      . Our decision is specifically limited to the proceedings in their current procedural posture, and we express no opinion about the parameters of any possible duty owed to the daughters by the Texas defendants, the interplay of any mandatory or discretionary acts by the Texas defendants, and any defenses that may be available to them.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 SD 56
    STATE of South Dakota, Plaintiff and Appellee, v. John DOWNS, Defendant and Appellant.
    No. 21951.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2002.
    Decided May 8, 2002.
    Mark Barnett, Attorney General, Richard M. Williams, Assistant Attorney General, Pierre, South Dakota, for plaintiff and appellee.
    R. Scott Rhinehart, Richard Rhinehart & Associates, Sioux City, Iowa, for defendant and appellant.
   PER CURIAM.

[¶ 1.] John Downs appeals from a judgment finding his vehicle overweight on his bridge between the second and seventh axles by 4900 pounds contrary to SDCL 32-22-16. He was ordered to pay a civil penalty of $1,102 and fines and costs of $136. We affirm.

FACTS

[¶ 2.] For two and one half years the State of South Dakota has operated a temporary weigh area at an unimproved rest area off 1-29 just south of the Alcester exit. The area is half concrete, half asphalt and gravel, and has a hard surface that is close to level. The area has the right dimensions and criteria for weighing by portable and wheel weigh scales.

[¶ 3.] Jerry Schubauer, a motor carrier inspector for the South Dakota Highway Patrol for eleven years, used the area and the portable scales on a regular basis. On August 24, 2000 at 1:00 p.m. he began weighing a truck loaded with dry cement driven by John Downs for Ludey’s Redi Mix of Vermillion.

[¶ 4.] Due to the configuration of Downs’ truck Schubauer was not able to adequately weigh it using platform scales. Using wheel scales, Schubauer weighed the two steer axles, the tandem drive axles, and the four trailer axles. The truck had a gross weight of 96,800 pounds and a two through seven bridge weight on the axles of 85,400. Because the bridge distance on the track was 43'6" the maximum legal weight allowed on the bridge was 80,500. Consequently Downs was cited for being 4,900 pounds overweight on the two through seven bridge.

[¶ 5.] Prior to his truck being weighed by Schubauer, Downs’ truck was weighed at Dacotah Cement when it was loaded. The bill of lading indicates a gross weight of 92,460. At trial Downs did not have the person who weighed or loaded his truck at Dacotah Cement testify. Rather, Leonard Bees, a South Dakota state scale inspector, testified about the accuracy of the permanent scale at Dacotah Cement. Claus Smith, a sales engineer at Dacotah Cement, testified about Dacotah’s loading procedures.

[¶ 6.] The trial court found:

beyond reasonable doubt that the weight configuration which the Defendant’s vehicle could be between the bridge of the second and seventh axles is 80,500 pounds and that the Defendant’s vehicle weighed 85,4000 [sic] pounds, or 4,900 pounds overweight. While the Defendant did produce evidence that the Defendant’s vehicle was weighed at another scale on the same load and that the gross weight on the Defendant’s vehicle weighed less than the gross weighed by Inspector Schubauer, the Defendant did not present evidence regarding the weight of the bridge between the second and seventh axles.

ISSUE

[¶ 7.] Did the state prove beyond a reasonable doubt that Downs’ truck was overweight on 2 — 7 axle group contrary to SDCL 32-22-16(3)?

[¶ 8.] Downs was found guilty of violating SDCL 32-22-16(3) which provides, in pertinent part:

No motor vehicle or combination of vehicles operating on a public highway may have a weight:
(3) In excess of the maximum weight on two or more consecutive axles as determined by the formula detailed in § 32-22-16.1,

Peace officers are authorized to weigh by means of portable or stationary scales. SDCL 32-22-50. Weighing devices are deemed correct if they conform to SDCL 37-21-5 to 37-21-8.

[¶ 9.] In this case, Schubauer was trained to use portable scales. All of the scales he used on Downs’ truck were certified. He used standard weighing procedures. By applying the bridge weight formula he determined that Downs’ truck was in violation of the maximum bridge weight. This evidence and the reasonable inferences from it sustain a reasonable theory of guilt. State v. Frazier, 2001 SD 19, 622 N.W.2d 246.

[¶ 10.] Downs asks this Court to resolve conflicts in evidence, pass on the credibility of witnesses and weigh evidence, things that a reviewing court does not do. Frazier, 2001 SD 19 at ¶ 44, 622 N.W.2d at 261. The bottom line is that Downs provided no evidence to dispute the accuracy of Schubauers scales, no evidence regarding the actual loading or weighing of Downs’ truck at Dacotah Cement, and no evidence that the load shifted, and no evidence regarding the two through seven bridge weight.

[¶ 11.] Affirmed.

[¶ 12.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KOHENKAMP, Justices, and GORS, Acting Justice, participating.

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

       For the purposes of § 32-22-16 the maximum gross weight on a group of two or more consecutive axles allowable on a public highway shall be determined by the following formula:
      W=500 [LN/CN-l) + 12N + 36]
      In applying the above formula "W” equals the overall gross weight on any group of two or more consecutive axles to the nearest five hundred pounds, "L” equals the distance measured longitudinally to the nearest foot from the foremost axles to the rearmost axle in a group of two or more consecutive axles, and "N” equals the number of axles in group under consideration.


author: KERN, Circuit Judge. GORS, Acting Justice

text:
    2002 SD 55
    COUNCIL OF HIGHER EDUCATION, Petitioner and Appellee, v. SOUTH DAKOTA BOARD OF REGENTS, Respondent and Appellant.
    Nos. 21932, 21938.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided May 8, 2002.

      Anne Plooster of Council of Higher Education-Special Schools, Pierre, South Dakota, Attorney for petitioner and appellee.
    James F. Shekleton of South Dakota Board of Regents, Pierre, South Dakota, Attorney for respondent and appellant.
    Thomas H. Harmon of Tieszen Law Office, Pierre, South Dakota, Attorneys for amicus curiae Associated School Boards of South Dakota.
   KERN, Circuit Judge.

[¶ 1.] The Council of Higher Education Special Schools (COHE) and the South Dakota Board of Regents (BOR) were involved in teacher employment negotiations in 1999 and unable to come to an agreement. As a result, COHE declared an impasse and BOR imposed its final offer, which more than doubled the damages recoverable in the liquidated damages clause of the contract. COHE then filed a complaint with the Department of Labor (Department) alleging that the unilateral imposition of liquidated damages violated SDCL 53-9-4 and 53-9-5 and constituted an unfair labor practice by BOR. Department found SDCL 53-9-4 and 53-9-5 inapplicable to collective bargaining agreements, reasoning these agreements were not contracts. Department also determined no unfair labor practice violation occurred. COHE appealed to the circuit court. The circuit court reversed Department’s determination that collective bargaining agreements are not contracts, but affirmed Department’s decision that no unfair labor practice had occurred. We concur that these agreements are contracts, but reverse the trial court’s determination that SDCL 53-9-4 and 53-9-5 are applicable in their entirety, and hold that SDCL 3-18-8.2 permits implementation of Board’s final offer, including the liquidated damages clause. The issue regarding unfair labor practices has been withdrawn by COHE.

FACTS AND PROCEDURE

[¶ 2.] COHE is the recognized, exclusive and continuous bargaining agent for the public employees teaching at the special schools in the State of South Dakota. BOR is the constitutional body, which was established by the South Dakota Constitution, Article XIV, § 3, to govern state educational institutions, under the rules and restrictions provided for by the South Dakota Legislature. The dispute between COHE and BOR began during the close of the 1999 collective bargaining negotiations addressing the terms and conditions of employment for the fiscal year 2000. BOR proposed an increase in the amount of liquidated damages assessed to teachers. These damages would be assessed to teachers who broke their individual employment contracts less than thirty days before the start- of the school year. COHE rejected the proposal and did not seek intervention by Department. COHE then orally declared an impasse on September 1, 1999 and delivered a written declaration of impasse on September 9, 1999. Relying on SDCL 3-18-8.2, BOR voted to impose its final offer with an implementation date of September 13, 1999. BOR’s final offer raised the liquidated damages to $85 per day up to a maximum amount of $2400. The previous liquidated damages agreement had a penalty of $35 per day up to a maximum amount of $1000.

[¶ 3.] On November 10, 1999, COHE filed a complaint with Department against BOR for unfair labor practices, basing the complaint on BOR’s unilateral increase of liquidated damages. COHE argued that the liquidated damages clause could not be imposed because of the restrictions under SDCL 53-9-4 and 53-9-5, which prohibit imposition of liquidated damages clauses absent agreement by the parties.

[¶ 4.] The parties stipulated to the facts alleged in the complaint. On June 26, 2000, Department determined SDCL 53-9-4 and 53-9-5 were inapplicable to collective bargaining agreements, reasoning that collective bargaining agreements are not contracts. Department also determined that BOR had followed statutory procedures in imposing its final offer. Accordingly, the Department found that BOR had not committed unfair labor practices.

[¶ 5.] COHE appealed to the circuit court. The circuit court determined BOR had indeed followed the statutory procedures in imposing its final offer, but reversed Department’s decision regarding the applicability of SDCL 53-9-4 and 53-9-5 to collective bargaining agreements. The circuit court determined collective bargaining agreements are contracts, and found that the language of SDCL 53-9-5 applies to every contract. BOR appealed to this Court on May 9, 2001. Associated School Boards of South Dakota filed an amicus curiae brief in support of BOR.

STANDARD OF REVIEW

[¶ 6.] The parties have stipulated to the facts in this case. Accordingly, this Court reviews the issues on a de novo basis. Webster Educ. Ass’n v. Webster Sch. Disí. No. 18-4, 2001 SD 94, ¶4, 631 N.W.2d 202, 204.

ANALYSIS AND DECISION

Collective Bargaining Agreements

[¶ 7.] South Dakota law provides public employees with the opportunity to bargain collectively with their employers. SDCL ch 3-18. This process “requires public employers to negotiate matters of pay, wages, hours of employment, or other conditions of employment.” Sisseton Educ. Ass’n v. Sisseton Sch. Dist. No. 54-8, 516 N.W.2d 301, 303 (S.D.1994) (citing SDCL 3-18-3). Department of Labor conciliation may be requested by either party when an agreement cannot be reached. SDCL 3-18-8.1. If that assistance does not provide a resolution, the parties may ask the Department of Labor to investigate the situation and make a report with settlement recommendations. SDCL 60-10-2. If an agreement is still not reached, the employer is required to impose its final offer, provided that the subject is a mandatory subject of bargaining, the employer has negotiated in good faith and a genuine impasse has been reached. SDCL 3-18-8.2. Accordingly, the employer is not allowed to use its economic power to remove a subject from bargaining, but the employer is also not required to agree with the union’s terms. Rather, the employer attempts to achieve its goals by imposing the final offer. This process prevents the union from having a unilateral veto over the terms that the employer desires, from thwarting governmental objectives, and from disturbing the efficiency of governmental operation. This process also prevents the employer from imposing its terms without first negotiating in good faith. Sisseton Educ. Ass’n, 516 N.W.2d at 303.

The Applicability of SDCL 53-9-4 and 53-9-5 to Collective Bargaining Agreements

[¶8.] Appellant argues, and Department concluded that SDCL 53-9-4 and 53-9-5 are not applicable to collective bargaining agreements. SDCL 53-9-4 provides:

Penalties imposed by contract for any nonperformance thereof are void. This section does not void obligations penal in form such as heretofore have been commonly used, but it voids their penal clauses.

SDCL 53-9-5 provides:

Every contract in which amount of damage or compensation for breach of an obligation is determined in anticipation thereof is void to that extent except the parties may agree therein upon an amount presumed to be the damage for the breach in cases where it would be impracticable or extremely difficult to fix actual damage.

Department based its opinion on the premise that labor agreements are agreements concerning the terms that will be offered to individual employees, and accordingly “operate on a different legal plane than the private contracts addressed in SDCL 53-9.” Department, relying upon J.I. Case Co. v. N.L.R.B., 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), concluded that SDCL ch 53-9 applies only to individual private contracts and would not apply to non-contractual collective bargaining agreements.

[¶ 9.] In J.I. Case Co., the United States Supreme Court addressed the issue of whether or not individual employees were able to form individual contracts with their employer when a union had been formed and was acting as the employees’ representative. In determining that generally a union agreement would preempt an individual contract, the U.S. Supreme Court discussed the unique nature of collective bargaining agreements. The Court stated:

Contract in labor law is a term the implications of which must be determined from the connection in which it appears. Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than in a contract of employment.

J.I. Case Co., 321 U.S. at 334-35, 64 S.Ct. at 579, 88 L.Ed. 762.

[¶ 10.] Department, relying on this language, found trade agreements were not contracts. The circuit court reversed Department’s decision and found that trade agreements were contracts under South Dakota law. We agree. The uniqueness of a trade agreement may make it something different than an employment contract, but the trade agreement remains a contract between the union and the organization. This Court has previously applied general principles of contract law to disputes involving trade agreements. In Gettysburg Sch. Dist. No. 53-1 v. Larson, 2001 SD 91, ¶ 11, 631 N.W.2d 196, 200, we held that “[disputes over the meaning of terms in teacher contracts are resolved under the general principles of contract law.” In Wessington Springs Educ. Ass’n v. Wessington Springs Sch. Dist. No. 36-2, 467 N.W.2d 101, 104 (S.D.1991) we found that “[t]he contracts negotiated between public school districts and teachers are like any other collective bargaining agreement, and disputes over the agreement are resolved with reference to general contract law.”

[¶ 11.] The circuit court, having determined these agreements were contracts, applied SDCL 53-9-5, which prohibits unilateral imposition of liquidated damages provisions in every contract. In analyzing this question however, we must also address the applicability of SDCL 3-18-8.2, which sets out the legislative scheme for collective bargaining in South Dakota. SDCL 3-18-8.2 provides:

Any school district issuing contracts to teachers for the ensuing year, but prior to reaching agreement with the representatives of the recognized employee unit, shall issue the contracts under the same terms and conditions as for the current year. If no agreement is reached in negotiations and the intervention of the labor department under § 3-18-8.1 fails to bring about an agreement, the board shall implement, as a minimum, the provisions of its last offer, including tentative agreements. If the labor department is not requested to intervene under the provisions of § 3-18-8.1, the board shall implement the provisions of its last offer, including tentative agreements, eleven days after an impasse is declared.

[¶ 12.] In the event an impasse is declared and an intervention is not requested, the board is required to implement its last offer, including tentative agreements that the union has not agreed upon. This provision specifically allows a contract to be formed without the express consent of the COHE representatives. This formation of contract without express consent creates a conflict of laws. This conflict arises in SDCL 53-3-1, which requires that the consent of the parties in a contract must be free, mutual and communicated to each other. Likewise, and more applicable to the case at hand, SDCL 53-3-4 and 53-3-5 both contain consent requirements.

[¶ 13.] The conflict is clear in this case. Although normally consent to a liquidated damages clause is required from both parties, when an impasse has been declared and liquidated damages are part of the board’s final offer, liquidated damages may be imposed without the union’s consent. The plain meaning and application of SDCL 3-18-8.2 requires this result. By permitting the imposition of unilateral contracts after an impasse, the legislature implicitly created an exception of sorts to the general rules regarding mutual consent in contract. Because SDCL 3-18-8.2 does not specifically state that it has no effect on the requirements of SDCL 53-9-4 and 53-9-5, it is this Court’s determination that SDCL 3-18-8.2 has a broad application to all consent requirements in contract law.

[¶ 14.] However, this is not to say that SDCL 53-9-5 is entirely trumped by SDCL 3-18-8.2. When two statutes are in apparent conflict with one another, the laws of statutory construction require them , to be read in harmony if possible. Faircloth v. Raven Indus. Inc., 2000 SD 158, ¶ 7, 620 N.W.2d 198, 201. Furthermore, the law disfavors statutory repeal by implication. Id. at ¶ 10, 620 N.W.2d at 202 (citing Morton v. Mancari et al., 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290, 300 (1974)). Accordingly, although the consent aspect of SDCL 53-9-5 is in conflict with the provisions of SDCL 3-18-8.2 allowing unilateral imposition of liquidated damages, other aspects of SDCL 53-9-5 survive. The last part of SDCL 53-9-5 provides that liquidated damages may be assessed “where it would be impracticable or extremely difficult to fix actual damage.” Nothing in SDCL 3-18-8.2 conflicts with this notion. SDCL 3-18-8.2 merely allows the liquidated damages to be assessed regardless of consent from both parties. Accordingly, SDCL 3-18-8.2 limits the applicability of SDCL 53-9-5 to collective bargaining agreements only to the extent that consent is normally required for liquidated damages clauses. This impasse rule has no effect on the rule of SDCL 53-9-5 that only allows liquidated damages where it is impracticable or extremely difficult to fix the actual damages.

[¶ 15.] This ruling does not leave COHE completely without protection against liquidated damages clauses. The case law and statutory scheme involving collective bargaining agreements includes built-in protections for COHE in an impasse situation. BOR is required to negotiate in good faith. SDCL 3-18-3.1(5). If the negotiations are not done in good faith, BOR faces claims for unfair labor practices. SDCL 3-18-3.1. Prior to the declaration of impasse, COHE has the option of seeking intervention by Department. SDCL 3-18-8.1. Additionally, the latter part of SDCL 53-9-5 dealing with the impracticability of fixing actual damages provides another avenue of protection against liquidated damages clauses. Accordingly, this Court’s determination that the consent requirements of SDCL 53-9-4 and 53-9-5 do not apply to collective bargaining agreements, does not leave COHE completely unprotected from unfair or outrageous liquidated damages clauses.

[¶ 16.] The negotiations between BOR and COHE are negotiations between public officers and public employees. There is a strong public interest in preventing strikes by public employees in order to ensure efficient government functioning. SDCL 3-18-10. This is one of the driving forces behind the impasse rule. Impasse allows the negotiations process to continue, and emphasizes good faith negotiations by both sides. Impasse forces COHE to negotiate in good faith because it prevents COHE from failing to bargain and prevents it from unilaterally vetoing the terms submitted by BOR through strike. Impasse also requires BOR to negotiate in good faith because COHE can bring forth an unfair labor practices complaint if negotiations are in bad faith. SDCL 3-18-3.1.

[¶ 17.] It is important to consider the logical extension of the circuit court’s determination. If collective bargaining agreements as contracts were susceptible to the mutual consent requirements of SDCL ch 53-9, the effect would be a total eradication of the impasse process. The impasse procedures provided for in SDCL ch 3-18 were put into effect to specifically address the stalemate problem that arises in negotiations. Applying SDCL ch 53-9 to the detriment of the impasse rule would prove disadvantageous to the collective bargaining process.

[¶ 18.] Although unilateral imposition of liquidated damages clauses are disfavored, built-in protections exist in the collective bargaining process. Additionally, society’s interest in preventing public employees from stalling negotiations is an essential policy consideration rooted deeply in the law of collective bargaining. SDCL 3-18-10. Because the language of SDCL 3-18-8.2 provides for the formation of contracts without mutual consent, the consent requirements of SDCL 53-9-4 and 53-9-5 do not apply to collective bargaining agreements. If the legislature intended the consent requirements of SDCL 53-9-4 and 53-9-5 to apply to collective bargaining agreements even in the face of SDCL 3-18-8.2, it certainly could have provided so.

CONCLUSION

[¶ 19.] For the previously stated reasons, we affirm the circuit court’s conclusion that collective bargaining agreements are contracts. However, we reverse the circuit court’s conclusion that SDCL 53-9-4 and 53-9-5 prevented the Board from imposing liquidated damages.

[¶ 20.] GILBERTSON, Chief Justice, and AMUNDSON, Justice, concur.

[¶ 21.] KONENKAMP, Justice, and GORS, Acting Justice, dissent.

[¶ 22.] KERN, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 23.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, and being the trial judge in this case, did not participate.

GORS, Acting Justice

(dissenting).

[¶ 24.] I respectfully dissent.

[¶ 25.] SDCL 53-9-4 voids liquidated damages. SDCL 53-9-5 applies this public policy to “every contract” unless the parties agree to liquidated damages. Collective bargaining agreements are contracts. Wessington Springs Educ. Ass’n, 467 N.W.2d at 104. The term “every contract” paints with a broad brush and admits no exceptions but agreement. The majority opinion frustrates the public policy by imposing liquidated damages without agreement.

[¶ 26.] Look no further than another public policy provision in the same chapter of the code. SDCL 53-9-7 voids every contract in restraint of marriage. Under the majority opinion, a school district could propose a requirement that all teachers be single. Upon impasse, this void term could then be imposed. Public policy would be frustrated.

[¶ 27.] Here the parties did not agree to liquidated damages. Therefore, the liquidated damages clause is void and should not be imposed upon impasse.

[¶ 28.] KONENKAMP, Justice, joins this dissent.


author: GORS, Acting Justice.

text:
    2002 SD 54
    In the Matter of the GUARDIANSHIP of T.L.R. and Concerning Johnny E. Ross, Father.
    No. 21913.
    Supreme Court of South Dakota.
    Argued Nov. 15, 2001.
    Decided May 8, 2002.

      John J. Delaney, Rapid City, South Dakota, for appellant, Guardians, Linda and Alvin Span.
    Suzanne Dardis of Hood & Nies, P.C., Spearfish, South Dakota, for appellee, Father, Johnny E. Ross:
   GORS, Acting Justice.

[¶ 1.] Alvin and Linda Span appeal from an order terminating their guardianship of T.L.R. We affirm.

FACTS AND PROCEDURE

[¶ 2J T.L.R. was born on August 27, 1996, to Johnny Ross (Johnny) and Jamie Lynn Span (Jamie). The couple never married. Johnny and Jamie had a son born prior to T.L.R. in August of 1995. However, this son died eight days after his birth. Both parents were devastated and both began to abuse alcohol. In January of 1997, when T.L.R. was five months old, Jamie and Johnny separated. They agreed that Jamie would have physical custody of T.L.R., while Johnny would have regular visitation.

[¶ 3.] Jamie and T.L.R. moved in with Jamie’s parents, Linda and Alvin Span (Spans). In late February, Jamie relocated to an apartment. Unknown to Johnny, Jamie left T.L.R. with the Spans. Within two months, Jamie left town without telling anyone where she was going. T.L.R. remained with the Spans.

[¶ 4.] On April 3, 1997, the Spans instituted a guardianship proceeding with a hearing scheduled for April 18th. There was a dispute whether notice was properly served on Johnny, and he did not appear at the hearing. At the hearing, the trial court appointed Spans as guardians of T.L.R. Later, Johnny obtained counsel and filed a petition on May 5th to remove the Spans as guardians, to terminate the guardianship and to grant custody to Johnny. He presented evidence at the hearing on May 22nd that Jamie stole the notice of the guardianship proceeding out of his mailbox. The trial court declined to rule on this issue and instead ordered that Spans remain guardians, subject to specific visitation rights to Johnny. The trial court also ordered a home study to be conducted on both parties.

[¶ 5.] Subsequently, Tom Collins (Collins), an administrator for Child Protection Services, conducted a child custody study. Collins recommended that the guardianship be continued, subject to a visitation schedule that would assist in a transition of T.L.R. from Spans’ care to Johnny. Collins suggested that the court schedule a review hearing after one year to review the placement of T.L.R. in Johnny’s care.

[¶ 6.] After a year had passed, Johnny pursued the custody of his son and filed a petition to remove and terminate the guardianship and determine custody on August 12,1998. Collins completed a child custody update on November 13th “strongly” recommending that T.L.R. be returned to his parents’ care, with Johnny as the primary caregiver.

[¶ 7.] On December 1, 1998, the trial court terminated the guardianship of the Spans and granted legal custody to Johnny. The trial court also ordered that Johnny not consume any alcohol while T.L.R. was in his custody. On December 23rd, however, the trial court vacated the order terminating guardianship and granting custody to Johnny. In a new order, the trial court set out additional requirements that Johnny had to meet before custody would be returned to him.

[¶ 8.] On January 21, 1999, Johnny made a motion for a transitional plan whereby T.L.R.’s physical custody would gradually transfer to Johnny. The Spans, however, reported to the trial court that a child psychologist they had personally hired, Lee Pfeiffer (Pfeiffer), believed that overnight visits should be suspended and T.L.R. should stay with the Spans until he was four years old. On February 23, 1999, both Johnny and Jamie signed a stipulation that they had withdrawn their motions to terminate guardianship and to gain custody of T.L.R., subject to the right of either Johnny or Jamie to petition the court for termination of the guardianship at some future date.

[¶ 9.] On July 28, 2000, Johnny filed a motion to terminate the guardianship, and trial was set for January 11, 2001. On September 7, 2000, Pfeiffer met with Johnny and T.L.R. Pfeiffer agreed with Collins that T.L.R. should be returned to the care and custody of his biological parents “on a transitional basis.” At trial, both Collins and Pfeiffer testified that primary custody should be vested with Johnny. The trial court ordered the guardianship to be terminated, that Johnny and Jamie share joint legal custody, and that Johnny receive primary physical custody, subject to visitation rights of Jamie and Spans. Johnny was ordered to submit to a drug and alcohol evaluation within thirty days. Johnny was evaluated on January 29, 2001, and the drug and alcohol counselor concluded, “[bjased on the evaluation and oral interview, Mr. Ross does not meet the criteria for alcohol/drug abuse or dependency.” (émphasis in original).

[¶ 10.] The trial court signed an order terminating guardianship and placing primary physical custody with Johnny on March 23, 2001. The trial court also ordered that Johnny “neither possess nor consume alcohol, regardless of whether [T.L.R.] is with him .... ” The Spans appeal on the following issue: is a showing of substantial change in circumstances required prior to the termination of a guardianship?

STANDARD OF REVIEW

[¶ 11.] This Court reviews a trial court’s factual determinations under the clearly erroneous standard. Therkildsen v. Fisher Beverage, 1996 SD 39, 545 N.W.2d 834, 836. We recently described our review surrounding statutory interpretation as follows:

Questions of law such as statutory interpretation are reviewed by the Court de novo.... The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the Court thinks it should have said, and the Court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Cromwell v. Rapid City Police Dep’t, 2001 SD 100, ¶ 9, 632 N.W.2d 20, 23 (citing Lekanidis v. Bendetti, 2000 SD 86, ¶ 16, 613 N.W.2d 542, 545).

ANALYSIS AND DECISION

[¶ 12.] Pursuant to SDCL 29A-5-506, a trial court may terminate a guardianship if it “determines that the minor is no longer in need of the assistance or protection of a guardian .... ” The Spans argue that Johnny must prove that a material and substantial change of circumstances has occurred before the guardianship is terminated. The Spans compare a termination of a guardianship to a modification proceeding in a parental custody dispute pursuant to SDCL 25-4-45. Although that statute does not expressly require a substantial change in circumstances, it has long been the rule in South Dakota that, to modify a custody decree rendered after a contested hearing, the moving party must show a substantial change in circumstances. See Price v. Price, 2000 SD 64, ¶ 52, 611 N.W.2d 425, 436; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 33, 591 N.W.2d 798, 810; Kappenman v. Kappenman, 523 N.W.2d 410, 413 (S.D.1994); Andersen v. Andersen, 399 N.W.2d 363, 365 (S.D.1987); Mayer v. Mayer, 397 N.W.2d 638, 640 (S.D.1986); Masek v. Masek, 90 S.D. 1, 5, 237 N.W.2d 432, 434 (1976) [Masek II]. This requirement shields children and parents from the incalculable detriment caused by “endless and vexatious litigation[.]” Masek II, 90 S.D. at 6, 237 N.W.2d at 434.

[¶ 13.] In legal contests between a parent and a nonparent for the custody of a child, the threshold question becomes: “Is the parent unfit to have custody of the child?” Matter of Guardianship of Sedelmeier, 491 N.W.2d 86, 87 (S.D.1992). The parents’ right to custody over their own children should never be disturbed except upon a clear showing against the parent of “gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child.” Id. at 88. In Fuerstenberg, 1999 SD 35 at ¶ 24, 591 N.W.2d at 807, we stated:

Some of the factors important to the fitness question are: (1) mental and physical health; (2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; (3) ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; (4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; (5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.

(internal citations omitted). After reviewing these factors in Fuerstenberg, the trial court found Johnny to be a fit parent.

[¶ 14.] Since the oral arguments in this case, this Court decided Meldrum, v. No-votny, 2002 SD 15, 640 N.W.2d 460. In Meldrum, a majority of this Court held that even though the natural parent was fit, the trial court should look at the best interests of the child in determining whether an unrelated third party should have custody. Chief Justice Gilbertson and Justice Konenkamp agreed that when extraordinary circumstances exist, the trial court should look at the best interests of the child. Id. at ¶ 39 and ¶ 60, 640 N.W.2d at 466 and 471. Justice Amundson joined and wrote that the best interests of the child should always be the paramount concern. Id. at ¶ 63, 640 N.W.2d at 472.

[¶ 15.] The Spans argue that it is in the best interests of T.L.R. to be in their custody. Both Collins and Pfeiffer testified, however, that it would be in T.L.R.’s best interest to be returned to the custody of Johnny on a transitional basis. Based on the evidence, the trial court concluded that it was in T.L.R.’s best interests “that transition of custody” be made into Johnny’s home.

[¶ 16.] As the trial court found, the guardianship was granted in large part due the immaturity of T.L.R.’s parents. It is undisputed that Johnny has a history of alcohol abuse. The trial court had previously ordered Johnny not to drink alcohol in T.L.R.’s presence, and then later ordered him that he could not drink alcohol at all. In its findings, the trial court acknowledged that Johnny had lied to the court about his drinking on prior occasions. The trial court also found, however, that Johnny demonstrated that he is able to assume the physical custody and responsibility of T.L.R. Further, Collins stated in his evaluation of Johnny in January of 2001, that Johnny was no longer dependent on alcohol.

[¶ 17.] Currently, Johnny has a home established with a new wife and their child. Both Johnny and his new wife have completed parenting classes. Johnny also has stable employment and has shown a desire to raise T.L.R. He has shown, pursuant to SDCL 29A-5-506, that T.L.R. is no longer in need of Spans’ guardianship.

[¶ 18.] In conclusion, Johnny was not required to show a substantial and material change of circumstances to terminate Spans’ guardianship of T.L.R. By their very nature, guardianships are temporary. The ultimate standard that should guide trial courts in deciding whether to terminate a guardianship in favor of a natural parent is the best interests of the child. When deciding whether to terminate a guardianship and to return a child to a natural parent, we adopt the following three-step analysis:

First, is the parent seeking to terminate the guardianship fit? If the parent is not fit, then the guardianship should not be terminated. If the parent is fit, then the trial court should advance to the second step in the analysis.
Second, are there extraordinary circumstances? If there are no extraordinary circumstances, then it is in the best interest of the child to be returned to the natural parent and the guardianship should be terminated. If there are extraordinary circumstances, then the trial court should advance to the third step in the analysis.
Third, what is in the best interest of the child? If it is in the best interest of the child to be returned to the natural parent then the guardianship should be terminated. If it is in the best interest of the child to remain with the guardian, then the child should not be returned to the natural parent and the guardianship should continue.

ATTORNEY’S FEES

[¶ 19.] Johnny has filed a motion for $4,569.26 in appellate attorney fees. Appellate attorney fees may be granted “in actions where such fees are allowable .... ” SDCL 15-26A-87.8. In general, the compensation of attorneys is left to the express or implied agreement of the parties. SDCL 15-17-38. However, the court “may award payment of attorneys’ fees in all cases of divorce, annulment of marriage, determination of paternity, separate maintenance, support or alimony.” SDCL 15-17-38. This case does not fall within these categories and the motion for attorney fees is denied.

[¶ 20.] The judgment is affirmed.

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

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

      . Pfeiffer interviewed only Linda Span and observed T.L.R. with Linda. Pfeiffer did not interview Johnny or observe T.L.R. with Johnny.

      . SDCL 25-4-45 provides, inter alia, that "[i]n an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.”


author: SABERS, Justice.

text:
    2002 SD 53
    Thomas J. BERGIN and Dannette B. Bergin, Plaintiffs and Appellees, v. Alan BISTODEAU, Jody Bistodeau, and Andy Block, Defendants and Appellants. and City of Hill City, Defendant.
    No. 22031.
    Supreme Court of South Dakota.
    Considered on Briefs March 25, 2002.
    Decided May 8, 2002.

      Robert M. Nash of Wilson, Olson, Nash & Becker, Rapid City, South Dakota, for plaintiffs and appellees.
    Mark S. Falk, Falk Law Office, Rapid City, South Dakota, for defendants and appellants.
   SABERS, Justice.

[¶ 1.] Thomas and Dannette Bergin (Bergin) filed suit against Alan and Jodi Bistodeau and Andy Block (Bistodeau) and the City of Hill City, South Dakota (City), alleging that City condemned a portion of Bergin’s property, a dedicated access easement, by rezoning Bistodeau’s property. Bergin sought a temporary restraining order to prevent Bistodeau and City from taking any further action regarding the access easement until the trial court could determine whether the access easement had been publicly dedicated and whether City’s actions regarding the easement were proper. Bistodeau moved to dismiss and then requested that the trial court convert the motion to dismiss into a motion for summary judgment. The trial court converted the motion to one for summary judgment but then granted summary judgment to Bergin. Bistodeau appeals. We reverse.

FACTS

[¶ 2.] Bergin owns Lots 1-9 of the Wheaton Addition in Hill City, South Dakota, which he purchased from Gene Rada. Rada acquired Lots 1-4 from Violet Whea-ton in 1972, Lot 5 from Teresa Madison in 1977, Lots 6-8 from Guy Phillips in 1975, and Lot 9 from Mollie Evans in 1981. Lots 1-9 are bordered on the north by Outlot 1, which is currently owned by Bis-todeau. The only means of access to Out-lot 1 is through Lots 1-9. See Appendix 1.

[¶ 3.] The 1973 contract for deed for the sale of Lot 5 reserved a full and unrestricted right of way to Outlot 1 across Lot 5. The deed provided that:

Buyer [Rada] agrees that Seller [Madison] shall have full and unrestricted right of way across the above described real estate [Lot 5] for the purpose of access to lots [Outlot 1] owned by Seller, his heirs and assigns, provided that Buyer has unrestricted use for the purpose of construction and maintenance of water, sewer and related utility lines only.

Lot 5 was specifically dedicated as an access easement to Outlot 1. In February 1986, Rada requested that City vacate the 1975 dedicated access easement on Lot 5 in return for a dedicated access easement on Lots 6 and 7. On February 24, 1986, City, through a formal resolution, officially accepted the offer of the dedicated access easement. See Appendix 2.

[¶ 4.] Bergin purchased Lots 1-9 from Rada in 1990. The contract for deed described the sale of property as “Lots One (1) through Nine (9), inclusive, in Block One (1) of Wheaton Addition to Hill City, Pennington County, South Dakota, less Dedicated Access Easement[.]”

[¶ 5.] Outlot 1 was originally zoned as a residential area. Over the years, the character and use of the property changed and, in 2000, Bistodeau requested that Hill City rezone Outlot 1 for commercial or light industrial purposes. The Pennington County Planning and Zoning Commission recommended approval. Despite the recommendation, City denied the rezoning request on December 11, 2000, after concluding that Outlot 1 did not abut a street or alleyway as required by City ordinance.

[¶ 6.] On January 19, 2001, Bistodeau asked that City reconsider his rezoning request and argued that the dedicated access easement on Lots 6 and 7 did fit within the definition of a street as defined by City ordinance. City agreed, and on January 30, 2001, granted the rezoning request.

[¶ 7.] On February 2, 2001, Bergin filed suit against Bistodeau and City arguing that the rezoning decision condemned a portion of Bergin’s property. He also requested that the trial court determine whether condemnation of the easement would be necessary to comply with state and local laws. Bergin sought a temporary restraining order to prevent Bisto-deau from running sewer and water lines across the easement and to prevent City from taking any further action concerning the easement until the trial court determined whether City was correct in its determination that the easement was a public street or alley.

[¶ 8.] On February 2, 2001, Bergin made a motion for a temporary restraining order to prevent Bistodeau from running water and sewer lines across the easement. A hearing was held on February 5, 2001. On February 21, 2001, Bistodeau moved to dismiss Bergin’s complaint on the grounds that: (1) Bergin lacked standing to bring the suit because he had no ownership interest in the easement; and (2) that the easement was a public street under local ordinances. City joined in Bistodeau’s motion to dismiss on February 22, 2001. On March 7, 2001, Bistodeau requested that the motion to dismiss be converted into a motion for summary judgment, which was granted. However, the trial court granted Bergin’s February 2, 2001 motion for an interim order and enjoined Bistodeau from using the easement for anything other than its normal use. The trial court also set a date for trial and determined that Bistodeau’s motion to dismiss would be heard at that time.

[¶ 9.] The trial court heard testimony and examined evidence at a hearing on April 2, 2001. On May 16, 2001, the trial court issued its findings of fact and conclusions of law determining that: (1) Bergin owned Lots 1-9; (2) Bergin did not own the dedicated access easement; (3) the dedicated access easement across Lots 6 and 7 “was not intended to create a dedication to public use but only a private right of access to Outlot 1 behind Lots 1 through 9, Block 1 of Wheaton Addition[;]” and (4) “[t]hat the dedication in the 1986 Plat was not sufficient to make a public dedication of a street to the City of Hill City.” The trial court granted summary judgment to Bergin.

[¶ 10.] Bistodeau appeals arguing that the trial court erred in determining: (1) that the easement was not publicly dedicated; (2) that City had not formally accepted the dedicated access easement; and (3) in improperly enjoining Bistodeau from running' sewer and water lines across the dedicated access easement.

STANDARD OF REVIEW

[¶ 11.] Our standard of review for summary judgment is well established and is “whether a genuine issue of material fact exists and whether the law was correctly applied.” Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (citing Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted)).

[¶ 12.] 1. WHETHER THE TERM “DEDICATED” AS USED IN THE 1986 PLAT DESCRIPTION MEANS A DEVOTION OF PROPERTY TO A PUBLIC USE.

[¶ 13.] In 1986, Rada, the then owner of Lots 1-9, asked City to vacate the dedicated access easement on Lot 5 in exchange for an easement on Lots 6 and 7. The Plat of Revised Easement in Wheaton Addition to Hill City, initially dated February 13, 1986, specifies that:

Acceptance of this plat by the Common Council of Hill City will cause the vacation of the dedicated access easement across Lot 5 as shown on the plat filed in Plat Book 14, Page 92 in the Pennington County Register of Deeds Office and grants a dedicated access easement on portions of Lots 6 & 7 in its place,

(emphasis added). See App. 1. This Plat was accepted by the Common Council of Hill City on February 24, 1986, and recorded in the Office of Register of Deeds in Pennington County on March 19, 1986, in Book 20, Page 235 of Plats. See App. 2. The trial court determined that the 1986 dedication was “not sufficient to make a public dedication!.]” Its findings of fact and conclusions of law provided:

That the dedicated access easement across parts of Lot[s] 6 and 7 established by Gene and Linda Rada in the Plat in 1986, was not intended to create a dedication to public use but only a private right of access to Ouüot 1 behind Lots 1 through 9, Block 1 of Wheaton Addition.

(emphasis added).

[¶ 14.] Bergin argues that the trial court was correct in its determination because the language of the 1986 dedication did not include the word “public.” He asserts that SDCL 11-3-12 requires a property owner to use the phrase “dedicate to the public” on the plat. This argument, however, fails to fully consider the legal connotation of the word “dedicate.”

[¶ 15.] SDCL 11-3-12, provides in part that:

When the plat or map shall have been made out, certified, acknowledged, and recorded as provided in this chapter, every donation or grant to the public, or any individual, religious society, corporation, or body politic, marked or noted as such on such plat or map, shall be deemed a sufficient conveyance to vest the fee simple title of all such parcel or parcels of land as are therein expressed, and shall be considered to all intents and purposes a general warranty against the donor, his heirs, and representatives, to the donee or grantee, his heirs or representatives, for the uses and purposes therein expressed and intended, and no other use and purpose whatever. The land intended to be used for the streets, alleys, ways, commons or other public uses shall be held in trust to and for the uses and purposes expressed or intended.

“Under the provisions of a statute like SDCL 11-3-12, the filing and recording of a plat has been held to manifest an indisputable intention on the part of the owner to dedicate to public use that which is designated as public on the plat.” Tinaglia v. Ittzes, 257 N.W.2d 724, 729 (S.D. 1977) (citing Ramstad v. Carr, 31 N.D. 504, 154 N.W. 195 (1915)) (emphasis added).

[¶ 16.] This Court has defined the term “dedication” in property cases and accepted it as a legal term of art, as follows:

Dedication is generally defined as the devotion of property to a public use by an unequivocal act of the owner that manifests an intention that the property dedicated shall be accepted and used presently or in the future. The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication.

Tinaglia, 257 N.W.2d at 728-29 (emphasis added) (additional citations omitted). See also Knight v. Madison, 2001 SD 120, 634 N.W.2d 540; City of Belle Fourche v. Dittman, 325 N.W.2d 309 (S.D.1982). Black’s Law Dictionary defines “dedicate” as “[t]o appropriate and set apart one’s private property to some public use; as to make a private way public by acts evincing an intention to do so.” Black’s Law Dictionary 412 (6th ed 1990). The term “dedication” is defined as “[a]n appropriation of land to some public use by or on behalf of the public[.]” Id.

[¶ 17.] A dedication is express when the intent is manifested by oral or written words, and is implied when the intent must be gathered from the acts of the dedicator. Otherwise stated, a dedication is express where the appropriation is formally declared, and is implied where it arises by operation of law from the owner’s conduct and the facts and circumstances of the case.

Tinaglia, 257 N.W.2d at 729 (citing 11 McQuillan, Municipal Corps. (3rd rev ed) § 33.03 at 631). “A statutory dedication is in the nature of a grant based on substantial compliance with the terms of the applicable statute, while a common-law dedication is generally held to rest upon the doctrine of estoppel in pais.” Tinaglia, 257 N.W.2d at 729 (citing Larson v. Chicago, M. & St. P. By. Co., 19 S.D. 284, 103 N.W. 35 (1905); Cole v. Minn. Loan & Trust Co., 17 N.D. 409, 117 N.W. 354 (1908)).

[¶ 18.] The access easement on Lots 6 and 7 was established through the express, statutory dedication contained in the 1986 plat and properly recorded. The access easement across Lots 6 and 7 was properly dedicated under SDCL 11-3-12 and was sufficient to make a public dedication. Under the facts of this case, the word “public” need not precede “dedication” in order to evince an intent to dedicate property for public use. Such a requirement would be redundant. The dedication of the access easement across Lots 6 and 7 in the 1986 plat was to the City and for public use. Thus, the trial court erred in its determination that the access easement was only a private easement.

[¶ 19.] 2. WHETHER CITY EXPRESSLY ACCEPTED THE DEDICATED ACCESS EASEMENT.

[¶20.] Bergin argues that there is no evidence that City accepted the access easement. He argues that City did not manifest an intent to accept the access easement because City did not include it on its street map or maintain it.

[¶ 21.] Bergin’s argument lacks merit. This Court has established that an acceptance is necessary in cases of property dedication. City of Belle Fourche, 325 N.W.2d at 311. An “intent by the owner to dedicate and acceptance by the public, in some manner, [are] essential elements of a complete dedication^]” Id. at 312. “[T]he mere filing of a plat without public acceptance does not vest fee simple title to streets and alleys ... it is simply an offer to dedicate.” Id. City accepted Rada’s offer of a dedicated easement on Lots 6 and 7 by formal resolution on February 24, 1986. This resolution stated: “I, Louella E. Peterson, Acting Finance Officer of Hill City, do hereby certify that at an official meeting held on 2/24/86, the Common Council of Hill City did by resolution approve the within plat.” See App. 2. Therefore, there was an intent to dedicate and an acceptance by City.

[¶ 22.] 3. WHETHER THE TRIAL COURT PROPERLY ENJOINED BISTODEAU FROM BRINGING WATER AND SEWER TO OUT-LOT ONE ACROSS THE DEDICATED ACCESS EASEMENT.

[¶ 23.] The trial court stated “[t]hat the dedicated access easement does not contemplate placing water, sewer or related utility lines across the dedicated access easement to reach Outlot 1” and “[t]hat the dedicated access easement across parts of Lots 6 and 7 is not an easement which would allow the owners of Outlot 1 to install water, sewer, or related utilities across the easement.”

[¶ 24.] The trial court erred in its determination. The language of the 1973 deed from Madison to Rada states:

Buyer [Rada] agrees that Seller [Madison] shall have full and unrestricted right of way across the above described real estate [Lot 5] for the purpose of access to lots [Outlot 1] owned by Seller, his heirs and assigns, provided that Buyer has unrestricted use for the purpose of construction and maintenance of water, sewer and related utility lines only.

The language of the 1986 dedication from Rada to City states:

Acceptance of this plat by the Common Council of Hill City will cause the vacation of the dedicated access easement across Lot 5 as shown on the plat filed in Plat Book 14, Page 92 in the Pennington County Register of Deeds Office and grants a dedicated access easement on portions of Lots 6 & 7 in its place.

(emphasis added). Under the terms of the 1973 contract for deed, which granted Rada an easement over Lot 5, and the 1986 dedication to City of an access easement over Lots 6 and 7, there were no restrictions placed on the use of the easement. Because the access easement across Lots 6 and 7 was dedicated to the public by Plat under SDCL 11-3-12 and was accepted by City through a formal resolution, the trial court erred in enjoining Bistodeau from bringing water and sewer to his property on said Lots.

[¶ 25.] Accordingly, we reverse.

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

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

X fcf

APPENDIX 2

      . Compare with Thieman v. Bohman, 2002 SD 52, 645 N.W.2d 260, where the City of Winner was not joined as an indispensable party to the action.

      . Finally, we point out that, because the trial court granted summary judgment, findings of fact and conclusions of law were unnecessary.
      "The question presented by [a summary judgment motion] is whether or not there is a genuine issue of fact. It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.” The trial court chose to enter findings of fact and conclusions of law. Since a summary judgment presupposes there is no genuine issue of fact, findings of fact and conclusions of law are unnecessary.

        Wilson v. Great N. Ry. Co., 83 S.D. 207, 211, 157 N.W.2d 19, 21 (quoting Ramsouer v. Midland Valley Ry. Co., 135 F.2d 101, 103 (8thCir.l943)).