author: HARTEN, Judge.

text:
    STATE of Minnesota, Appellant, v. David Francis COUGHLIN, Respondent.
    No. A07-239.
    Court of Appeals of Minnesota.
    May 22, 2007.

      Lori Swanson, Attorney General, Peter R. Marker, Assistant Attorney General, St. Paul, MN, and Douglas L. Ruth, Steele County Attorney, Owatonna, MN, for appellant.
    Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; WRIGHT, Judge; and HARTEN, Judge.
   OPINION

HARTEN, Judge.

The district court dismissed all criminal charges against respondent under Minn. R.Crim. P. 20.01, subd. 6, because the state did not file a notice of intent to prosecute within three years of the initial finding of respondent’s incompetency. Appellant State of Minnesota challenges the dismissal. Because we conclude that the dismissal was an error of law, we reverse and remand.

FACTS

Following a shootout with Owatonna police on 7 June 2003, respondent David Francis Coughlin was charged with two counts of attempted first-degree murder, two counts of first-degree assault, and one count of second-degree dangerous weapon assault. On 29 August 2003, the Steele County District Court found respondent incompetent to stand trial. On 17 December 2003, respondent was committed to the Minnesota Security Hospital as mentally ill and dangerous, where he still remains under indeterminate commitment.

In May 2004, the district court found respondent competent to stand trial, but on 16 December 2004, before a trial could be held, the district court once again found respondent incompetent to stand trial.

In June 2006, the district court received a report indicating that respondent was again competent. Respondent moved for a competency hearing, which was held in January 2007. At the hearing, the district court sua sponte requested the parties to brief the impact of Minn. R. Crim P. 20.01, subd. 6, on respondent’s situation.

Having concluded that Minn. R. Crim P. 20.01, subd. 6, entitled respondent to dismissal of all charges against him because the state had not filed a notice of intent to prosecute within three years of the initial finding of respondent’s incompetency, the district court dismissed the charges. The state challenges the dismissal.

ISSUE

Does Minn. R.Crim. P. 20.01, subd. 6, require a prosecutor to file, within three years of the initial finding of defendant’s incompetency to stand trial, written notice of intent to prosecute if the defendant is restored to competence after the defendant had alternated between periods of competency and periods of incompetency lasting less than three years?

ANALYSIS

Interpretation of the rules of criminal procedure is a question of law, which this court reviews de novo. State v. Whitley, 649 N.W.2d 180, 183 (Minn.App.2002).

Except when the defendant is charged with murder, the criminal proceedings shall be dismissed upon the expiration of three years from the date of the finding of the defendant’s incompetency to proceed unless the prosecuting attorney, before the expiration of the three-year period, files a written notice of intention to prosecute the defendant when the defendant has been restored to competency.

Minn. R.Crim. P. 20.01, subd. 6. Here, because the prosecutor had not filed a notice of intent to prosecute in January 2007 and respondent had first been found incompetent more than three years earlier, in August 2003, the district court dismissed the proceedings against him.

We disagree with this reasoning. The period of incompetency that began with the initial finding lasted only nine months; respondent was found competent in May 2004. “If the court determines that [a previously incompetent] defendant is competent to proceed, the criminal proceedings against the defendant shall be resumed.” Minn. R.Crim. P. 20.01, subd. 4. Accordingly, criminal proceedings against respondent were resumed and, between May and December 2004, he pleaded not guilty, a trial was scheduled, and he moved for a change of venue. Because this period of respondent’s ineompetency had lasted less than three years, the prosecutor was not required to file a notice of intent to prosecute when respondent’s competency returned.

Respondent’s second period of incompetency lasted 18 months, from December 2004 until June 2006, when he was again found competent. Under Minn. R. Crim P. 20.01, subd. 4, criminal proceedings against him were again resumed. Respondent moved for another competency hearing, which was held in January 2007. But that hearing did not result in a finding of respondent’s competency; instead, it resulted in the dismissal of all charges against respondent based on the prosecutor’s failure to file a notice of intent to prosecute by August 2006, which was three years after the initial finding of respondent’s incompetency.

If respondent had been incompetent throughout those three years, the dismissal would have been appropriate. But neither respondent’s initial period of incompetency (nine months) nor his second period of incompetency (eighteen months) was long enough to trigger the Minn. R.Crim. P. 20.01, subd. 6, requirement that a prosecutor file, within three years of the finding of incompetency, written notice of intent to prosecute if the incompetent defendant later becomes competent.

Respondent argues that the Minn. R.Crim. P. 20.01, subd. 6, reference to “three years from the date of the finding of the defendant’s incompetency to proceed” should be read as “three years from the date of the initial finding of the defendant’s incompetency to proceed.” But this reading ignores the reality that incompetency is sometimes not a permanent condition; periods of incompetency may alternate with periods of competency. The rules envision this reality: see, e.g., Minn. R.Crim. P. 20.01, subd. 4 (“If the court determines that [a previously incompetent] defendant is competent to proceed, the criminal proceedings against the defendant shall be resumed.”)

In construing a procedural rule, this court considers both the plain language and the purpose of the rule. In re Welfare of S.M.E., 725 N.W.2d 740, 742 (Minn.2007). The purpose of Minn. R.Crim. P. 20.01, subd. 6, is to ensure that defendants who remain incompetent for three years or longer, after the initial or subsequent finding of incompetency, realize that they are still subject to prosecution. Reading Minn. R.Crim. P. 20.01, subd. 6, to require notice of intent to prosecute within three years of a finding of incompetency followed by a period of incompetency lasting three years or more achieves this purpose. In contrast, requiring notice of intent to prosecute within three years of only the initial finding of incompetency, regardless of the length of the period of incompetency following that finding, would mean that defendants found incompetent a second or third time would not be entitled to notice of the state’s intent to prosecute them if they again became competent. This would frustrate the purpose of the rule and arguably achieve an absurd result that courts seek to avoid when construing rules. See, e.g., State v. Murphy, 545 N.W.2d 909, 916 (Minn.1996) (discussing construction of statutes).

We conclude that Minn. R.Crim. P. 20.01, subd. 6, does not require a prosecutor to file written notice of intent to prosecute if the defendant is restored to competence within three years of the initial finding of a defendant’s incompetency to stand trial, unless that initial finding is followed by a continuous period of incompetency lasting at least three years. Analogously, Minn. R.Crim. P. 20.01, subd. 6, does require a prosecutor who intends to resume a suspended criminal charge to give written notice within three years of intent to prosecute an incompetent defendant whose competency returns whenever the foregoing period of incompetency lasts at least three years.

We are aware that permitting prosecutors to comply with Minn. R.Crim. P. 20.01, subd. 6, by filing written notice of intent to prosecute within three years of any finding of incompetency, not only the initial finding, may result in delayed trials. But these delays violate neither due process nor, more specifically, the right to a speedy trial because they result from the defendant’s incompetency. See State v. Bauer, 299 N.W.2d 493, 496-98 (Minn.1980) (declining to dismiss indictment against defendant found incompetent to stand trial after finding no violation of due process or right to a speedy trial).

DECISION

We reverse the dismissal of the charges against respondent and remand for proceedings appropriate in light of respondent’s competency.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

      . Another version of Minn. R.Crim. P. 20.01, subd. 6, became effective on 1 April 2007. The change is irrelevant to the instant case.

      . We note that no prejudice accrues to respondent from this reversal. The state has three years from the date of his alleged offense, 7 June 2003, to file its indictment or complaint. Minn.Stat. § 628.260 (2002). This period is tolled by periods of incompetency. See Minn.Stat. § 541.15 (2002) (periods of insanity suspend running of limitations periods). Because of respondent's 27 months of incompetency, only nine months of the three-year period having elapsed, it appears that the state would be free in any event to refile the charges against him.


source: Caselaw Access Project

author: DIETZEN, Judge.

license: Public Domain

text:
    In the Matter of the Application of the GRAND RAPIDS PUBLIC UTILITIES COMMISSION to extend its Assigned Service Area into the Area Presently Served by Lake Country Power.
    No. A05-2550.
    Court of Appeals of Minnesota.
    May 29, 2007.

      Andrew J. Shea, Kathleen M. Brennan, McGrann, Shea, Anderson, Carnival, Straughn & Lamb, Minneapolis, MN, for relator Grand Rapids Public Utilities Commission.
    Lori Swanson, Attorney General, Kari Valley Zipko, Assistant Attorney General, St. Paul, MN, for respondent Public Utilities Commission.
    Harold P. LeVander, Jr., Felhaber, Larson, Fenlon & Vogt, P.A., St. Paul, MN, for respondent Lake Country Power.
    Considered and decided by DIETZEN, Presiding Judge; HUDSON, Judge; and COLLINS, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

DIETZEN, Judge.

In this certiorari proceeding, relator challenges the amount of a compensation award ordered by the Minnesota Public Utilities Commission (Commission) pursuant to Minn.Stat. § 216B (2006) to compensate an electric utility for territory it annexed as provided by law. Relator argues that the Commission’s order (1) was arbitrary and capricious and not supported by substantial evidence; and (2) was unconstitutional. We affirm.

FACTS

The City of Grand Rapids provides electricity to the area within its municipal boundaries through the Grand Rapids Public Utilities Commission (City). The City’s annual sales in kilowatt hours (kWh) is approximately 147 million kWh. Lake Country Power Cooperative Electric Association (Lake Country) provides electricity to a large area outside of municipal-utility service boundaries in eight counties in northern Minnesota. Lake Country’s service area completely surrounds the City. Its annual sales are just above 600 million kWh.

In June 2003, the City filed a petition with the Minnesota Public Utilities Commission (Commission) under Minn.Stat. § 216B.44 (2002), exercising its right to extend its assigned service area to include two areas recently annexed to the city but located within the assigned service area of Lake Country. The petition asked the Commission to adjust the City’s service-area boundaries to include these areas and to schedule a contested-case proceeding to determine appropriate compensation to Lake Country as required by the statute. In making a determination of the appropriate compensation, Minn.Stat. § 216B.44(b) requires the Commission to consider (1) the original cost of the property, less depreciation; (2) loss of revenue to the utility formerly serving the area; (3) expenses resulting from integration of facilities; and (4) other appropriate factors.

The administrative law judge (ALJ) assigned to the case conducted a two-day evidentiary hearing in June 2004. Witnesses, including experts, were presented by the City and Lake Country. The parties reached agreement on virtually all compensation factors except lost revenue. Based on different conclusions regarding the application of the “net-revenue-loss” formula to the facts, the City advocated a total award of $204,402, or 16.5 mills/kWh, limited to existing customers, and Lake Country advocated a total award of $521,657, or 35.4 mills/kWh for present customers and 32.4 for future customers.

Following the hearing, the ALJ issued findings, conclusions, and a recommendation for a compensation award to Lake Country for lost revenue of $233,820 (unadjusted for present value), or 15.5 mills/kWh. In reaching the recommendation the ALJ adopted the City’s proposed calculation method and rejected Lake Country’s proposed award. Alternatively, the ALJ recommended a compensation award of $270,850, using the gross-revenue-multiplier formula.

Lake Country filed exceptions to which the City responded, and the matter was presented to the Commission. Subsequently, the Commission filed its Order Determining Compensation, which was supported by findings and conclusions. The Commission concluded that it would use the “net-revenue-loss” formula to calculate the “loss of revenue to the utility formerly serving the area” required by the statute, with the objective of putting the displaced utility in the same position it would have occupied but for the loss of service rights to the area for which compensation is being determined.

The “net-revenue-loss” formula was developed by the Commission in 1990, with several refinements and clarifications in subsequent cases. The formula (1) determines gross revenues for each year of the compensation period, which the Commission has set at ten years, to reflect the intermediate planning period of most utilities; (2) determines avoided costs that the utility would no longer be required to incur because it is no longer serving the area (such costs would include the purchase of power to be sold within the area); (3) subtracts the avoided cost from the gross revenues, which results in yearly net-revenue loss for each year in the ten-year compensation period; and (4) reduces net revenue losses to present value. Due to the uncertainty of future events, the lump-sum amount calculated under this method is often converted into a kilowatt-per-hour rate, or mill rate, and payment is made at this mill rate over the compensation period.

The Commission found that the primary difference between the parties in the calculations of lost revenue was how the parties calculated “avoided costs,” or the costs that Lake Country would avoid by not serving the annexed areas and that would be deducted from the areas’ gross revenue, to arrive at a net-revenue-loss figure. Based on its analysis, the Commission awarded Lake Country a total compensation rate of 30 mills/kWh. The Commission rejected the ALJ’s report and, with minor adjustment, adopted Lake Country’s proposed compensation award. The City filed a petition for rehearing and reconsideration, which was denied. This certiorari appeal followed.

ISSUES

1. Was the Commission’s compensation award to Lake Country arbitrary, capricious, contrary to law, or unsupported by substantial evidence in the record?

2. Was the Commission’s compensation award to Lake Country unconstitutional?

ANALYSIS

I.

The City argues that the Commission’s order was arbitrary and capricious and not supported by substantial evidence. When reviewing agency decisions, we adhere to the fundamental concept that decisions of administrative agencies enjoy a presumption of correctness and that deference should therefore be shown by courts to the agency’s expertise and its special knowledge in the field. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). The agency decision-maker is presumed to have the expertise necessary to decide technical matters within the scope of the agency’s authority. In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn.2001).

A. ALJ Report

Initially, the City argues that the Commission erred by rejecting the ALJ’s report. The decision of the ALJ is entitled to some weight. In re Denial of Eller Media Co.'s Applications for Outdoor Adven Permits, 664 N.W.2d 1, 6 (Minn.2003). But the agency decision-maker owes no particular deference to the ALJ’s findings, conclusions, or recommendation. Blue Cross & Blue Shield, 624 N.W.2d at 278. Although an agency owes no particular deference to the ALJ’s report, Minn.Stat. § 14.62 (2006), requires an agency to give reasons for its rejection of the ALJ’s recommendation, and failure to do so is evidence that the agency’s decision was arbitrary and capricious. Bloomquist v. Comm’r of Natural Res., 704 N.W.2d 184, 190 (Minn.App.2005).

The Commission gave several reasons for rejecting the ALJ’s recommendation. First, the Commission rejected the ALJ’s conclusion that Lake Country’s proposed compensation award was unreasonable. Specifically, the Commission reviewed the ALJ’s comparison of Lake Country’s system-wide margin of 2.6% and an estimated margin of 40.4% for the annexed area and concluded that the two margins were not comparable.

Second, the Commission rejected the ALJ’s comparison to previous awards and settlements in the past 13 years as compiled by the Department of Commerce. The Commission concluded that the comparison exhibit was of “dubious relevance and little probative value,” because each compensation decision is unique, and utility costs and net revenue vary widely due to a variety of factors which include the characteristics of the service area and its load.

Third, the Commission rejected the ALJ’s use of a gross-revenue multiplier as a valid way to determine net-revenue loss on the ground that it did not measure all of the factors required by statute. Fourth, the Commission rejected the ALJ’s conclusion that comparing the City’s retail mill rate to Lake Country’s proposed compensation mill rate demonstrates that a lower compensation rate is appropriate. The Commission concluded that such a comparison had no bearing on the statutory factor and that the comparison did not take into account the unique features of Lake Country’s service area.

Fifth, the Commission rejected the ALJ’s conclusion that avoided costs should be calculated on an allocated basis rather than incrementally. It concluded that because not all fixed costs allocated to particular customers will go away with the departing customers, fixed costs formerly borne by the departing customers must be spread incrementally over those remaining on the utility’s system. Finally, the Commission rejected the ALJ’s approach to determining future customers for the annexed areas.

The Commission’s consideration and rejection of the ALJ’s recommendation is well reasoned and based on policy considerations and value judgments. On these matters, we defer to the expertise of the agency. Reserve Mining, 256 N.W.2d at 824.

B. Commission Order

The City argues that the Commission’s order was predicated on a number of errors that rendered its award to Lake Country arbitrary, capricious, and contrary to law. Review of agency decisions following a contested-case hearing is governed by Minn.Stat. § 14.69 (2006). On review, this court may reverse or modify the agency’s decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inference, conclusion, or decisions are:

(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the entire record as submitted; or
(f) arbitrary or capricious.

Minn.Stat. § 14.69. Upon review, we do not substitute our judgment for that of an agency. Blue Cross & Blue Shield, 624 N.W.2d at 277; Reserve Mining, 256 N.W.2d at 825. A decision is not arbitrary and capricious if the agency, presented with opposing points of view, reaches a reasoned decision that rejects one point of view. CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 565 (Minn.App.2001), review denied (Minn. Nov. 13, 2001). But an agency’s decision is arbitrary and capricious if it reflects the agency’s will and not its judgment. Blue Cross & Blue Shield, 624 N.W.2d at 278.

Put differently, we will not disturb an agency’s decision as long as the agency’s determination is supported by substantial evidence. Eller Media, 664 N.W.2d at 7. The substantial-evidence test is satisfied when there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In re Request of Interstate Power Co. for Auth. to Change its Rates for Gas Service in Minn., 574 N.W.2d 408, 415 (Minn.1998) (citation omitted). When applying the substantial-evidence test we determine whether the agency adequately explained how it derived its conclusion and whether that conclusion was reasonable. In re Petition of N. States Power Co. for Auth. to Change its Schedule of Rates for Elec. Serv. in Minn., 416 N.W.2d 719, 724 (Minn.1987). We retain the authority to review de novo errors of law which arise when an agency decision is based upon the meaning of words in a statute. Eller Media, 664 N.W.2d at 7.

1. “Reasonableness” Checks

The City argues that the Commission erred by not applying the gross-revenue-multiplier formula as a “reasonableness” check on the net-revenue-loss formula. Minn.Stat. § 216B.44(b) provides, inter alia, that the Commission determine “appropriate” compensation under the statute to the utility formerly serving the annexed area. The language of the statute does not explicitly require that the Commission apply an alternative formula to “check” the reasonableness of the compensation award. The statute does require that the Commission consider the “original cost of the [assigned utilities’] property, less depreciation, loss of revenue to the utility formerly serving the area, expenses resulting from integration of the facilities, and other appropriate factors.” Here, the Commission rejected the gross-revenue-multiplier formula on the basis that it does not calculate the statutory factors that must be applied to determine a compensation award.

The City also argues that the Commission has previously recognized the gross-revenue-multiplier formula. We disagree. The Commission acknowledged that it mentioned the formula in a 1986 case, but noted that it did not adopt the formula and “does not endorse the use of a gross revenue multiplier for proceedings of this type.” The Commission reasoned that this formula does not comply with the requirement of the statute.

We observe that in future cases, it may be appropriate for the Commission to consider alternative-revenue formulas as a “reasonableness check” to its valuation determination under the statute. See Equitable Life Assurance Soc’y of the U.S. v. County of Ramsey, 530 N.W.2d 544, 553 (Minn.1995) (stating that whenever possible “appraisers should apply at least two approaches to market value because the alternative value indications derived can serve as useful checks on each other”). But the “net-revenue-loss” formula is an appropriate method for the Minnesota Public Utilities Commission to calculate a displaced utility’s lost revenues under Minn.Stat. § 216B.44. On this record, the Commission’s decision is supported by the record and is not arbitrary and capricious.

2. Future Customers

The City next argues that the Commission erred in awarding loss of revenue for potential future customers. We disagree. The Commission found that while both parties expected low growth of future customers in the annexed areas over the ten-year compensation period, both parties expected some growth in future customers. Specifically, Lake Country projected 17 new customers, while the City estimated “generously” that one or two new customers per year could move into the annexed areas, or as many as 20 customers over the ten-year compensation period.

Here, the parties projected growth of 17-20 future customers in the annexed area during the ten-year compensation period. Thus, substantial evidence exists in the record that supports the Commission’s order requiring the City to compensate Lake Country for future customers.

3. Avoided Costs

The City argues that the Commission erred by determining that avoided costs should be calculated incrementally, which involves calculating the costs a utility will avoid if it loses particular customers in the annexed area. The City argues that avoided costs should be calculated on an allocated basis, which involves calculating the costs of supplying electricity to the utility’s general body of rate-payers and allocating those costs to different classes of customers.

The Commission disagreed. It reasoned:

Allocating costs among classes of customers who are actually on a utility’s system, contributing to the system’s fixed costs through their monthly bills, is fundamentally different from determining what costs a utility will avoid— that is, will stop incurring — if it loses particular customers. In the first case, costs are properly allocated to ensure that active customers bear their fan-share of fixed costs. In the second case, costs must be calculated incrementally, since not all the fixed costs allocated to particular customers will go away with the departing customers. Instead, the fixed costs formerly borne by the departing customers must be spread over those remaining on the utility’s system.

The Commission’s reasoning is both sound and supported by the record.

The City further argues that the Commission ignored its own precedent. “An agency must either conform to its prior norms and decisions or explain the reason for its departure from such precedent.” Peoples Natural Gas Co. v. Minn. Pub. Util. Comm’n, 342 N.W.2d 348, 353 (Minn.App.1983), review denied (Minn. Apr. 24, 1984). But “an agency decision may be upheld where each witness testified that a different calculation was reasonable, even though no witness gave testimony supporting the figure chosen by the Commission.” In re Petition of N. States Power Gas Utility, 519 N.W.2d 921, 926 (Minn.App.1994).

Here, the Commission referenced a pri- or annexation case in which it adopted the “incremental avoided costs” approach, and stated there was “nothing in this record demonstrating that this established practice should be rethought and overturned.” See Peoples Natural Gas, 342 N.W.2d at 353 (requiring conformance to prior norms and decisions). Quoting the prior annexation case, the Commission stated

since the North Park case in 1990, the Commission has consistently used the incremental approach to calculate the displaced utility’s avoided expenses and avoided capital investments. Acquiring utilities have often argued in favor of an averaging/allocation approach ..., but after careful deliberation the Commission has consistently found that the incremental approach offers greater accuracy due to its tight focus on the specific situation of the displaced utility.

On this record, the Commission’s decision to calculate avoided costs incrementally instead of on an allocated basis is reasonably supported in the record and not arbitrary or capricious.

The City also argues that the Commission erred in its determination of avoided purchased-power costs. Minn.Stat. § 216B.44 provides in relevant part that the Commission, in determining an appropriate compensation award, “shall consider ... loss of revenue to the utility formerly serving the area....” Both parties agree that the Commission must project the “net revenue loss.” A major expense to be deducted in arriving at net-revenue loss is the cost a utility incurs to purchase power. In this case it is called “avoided purchased-power costs” because as a result of the acquisition, Lake Country will avoid that purchased-power cost for customers in the annexed area.

Both parties presented expert testimony. The City’s expert relied on a 2000 rate study, which identified all costs of supplying electricity to Lake Country’s general body of rate payers and allocated those costs to different classes of customers. The City’s expert estimated the avoided purchased-power cost would be $91,897 per year or 61 mills/kWh. The Commission rejected the City’s estimate on the basis that it included costs that are not avoidable by Lake Country such as the rate structure of a wholesale supplier that artificially inflates purchased-power costs. The Commission rejected use of the 2000 study as it allocates total system costs instead of “determining the direct, incremental costs of losing service rights to annexed areas, and it counts as ongoing at least three significant costs that [Lake Country] no longer incurs.”

Lake Country’s expert estimated the avoided purchased-power cost would be $69,104 per year or 45.9 mills/kWh. The Commission rejected this estimate as well on the basis that it assumed an inflated load factor for the customers in the annexed areas, which artificially reduces the average cost of purchased power.

The Commission observed that at the hearing, Lake Country’s expert admitted that several large, high-load-factor industrial customers may have inflated the average and, therefore, reduced the avoided purchased-power cost. The expert testified, “It might be higher than 45[mills/ kWh], but it’s probably not higher than 48, let’s say, or 50. It’s certainly not up in the 60s.” The Commission, weighing all the factors, concluded that the purchased-power component is $76,770 per year or 51 mills/kWh.

Because the data to determine the load factor did not exist, and Lake Country assumed a system-average-load factor, the Commission was required to independently examine the record and determine an appropriate load factor. Weighing all of the factors and adjusting for the load factor, the Commission arrived at a mill rate of 51 mills/kWh or $76,770 per year. This mill rate, the Commission stated, was within the “reasonableness” range identified by Lake Country, and it approximated the City’s proposed rate, adjusted for some anomalies within its calculation data. On this record, the Commission adequately explained how it derived its conclusion, and that conclusion was reasonable on the basis of the record. See N. States Power Co., 416 N.W.2d at 724 (requiring the agency to adequately explain how it derived its conclusion).

4. Other Avoided Costs

The Commission also concluded that avoided costs should not include costs that the cooperative is no longer incurring. The Commission found that the 2000 rate study proposed to be used by the City includes at least three significant costs the cooperative no longer incurs. Those costs are a one-time special assessment of $600,000 from Great River Energy (GRE), the generation and transmission cooperative from which Lake Country purchases wholesale power; a $178,000 non-recurring surcharge from GRE; and $1,660,000 in substation charges Lake Country no longer incurs because it has purchased the substation. The Commission concluded that these costs “are not being avoided by transferring service responsibility to the City, and they should not be included in avoided costs.” The City argues that these costs should be included to offset Lake Country’s rate increases since 2000, but we defer to the agency’s expertise in determining what the relevant costs are to include in such a calculation. Blue Cross & Blue Shield, 624 N.W.2d at 278.

Further, the City argues that the Commission should have included approximately $51,220 in avoided system-improvement costs associated with operation and maintenance because Lake Country could use its existing capacity to serve other customers that it no longer needed to provide to the annexed areas. The Commission found that the record did not support including costs associated with allocated system improvements or upgrades in avoided costs because there was no evidence that Lake Country’s freed-up capacity could be used elsewhere in its system and there was no support for the City’s $51,220 figure. The record also indicates that Lake Country had no plans to construct system improvements within the compensation period. Therefore, substantial evidence in the record supports the Commission’s decision not to include system improvements in its avoided-costs calculation.

II.

The City argues that the Commission’s decision was unreasonable in awarding the “largest service territory award in Minnesota history,” and thus violated the City’s right to due process under the United States and Minnesota constitutions. On review, this court may reverse an agency’s decision if it violates a constitutional provision. Minn.Stat. § 14.69. We employ a de novo standard of review when interpreting the federal and state constitutions. See State v. Shattuck, 704 N.W.2d 131, 135 (Minn.2005) (federal); Olson v. Synergistic Tech. Bus. Sys., Inc. 628 N.W.2d 142, 148 (Minn.2001) (state).

Minn.Stat. § 216B.44 requires that in a contested case regarding compensation for annexed service territory by a municipal utility, the Commission must determine the “appropriate value” of compensation. The City claims that because a past Commission compensation order stated that a compensation award must be reasonable, an “unreasonable” award must violate due process. By analogy, the City argues the United States Supreme Court decision in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426, 123 S.Ct. 1513, 1524, 155 L.Ed.2d 585 (2003), holding that excessive punitive damage awards violate the Due Process Clause of the Fourteenth Amendment, protects it against “unreasonable” compensation awards by the Commission. But it is not at all clear that municipal corporations, unlike individuals or private corporations, are “persons” that have standing to assert constitutional due process rights. See, e.g., City of Sault Ste. Marie v. Andrus, 532 F.Supp. 157, 168 (D.C.Cir.1980) (holding that a city is not a “person” within the meaning of the Due Process Clause of the Fifth Amendment). Because we hold that the Commission’s award was not arbitrary and capricious and is supported by substantial evidence in the record, we need not reach the City’s constitutional claim on the merits. See State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981) (holding that courts do not decide constitutional questions except when necessary to dispose of a case).

DECISION

Because we conclude that the decision of the Commission is supported by the record and is not arbitrary and capricious or unconstitutional, we affirm.

Affirmed.

      . The petition also requested the Commission to transfer to the City another portion of Lake Country's assigned service area located within the City of La Prairie, but that issue is not the subject of this appeal.

      . The gross-revenue-multiplier formula calculates revenue loss by multiplying the annual gross revenues by a factor of two or three.

      . See In re Application of the City of Buffalo, A05-1410, 2006 WL 1229596 (Minn.App. May 9, 2006), review denied (Minn. July 19, 2006).

      . In re Annexation of a Portion of the Serv. Territory of People’s Coop. Power Ass’n (North Park Additions), 470 N.W.2d 525, 529 (Minn.App.1991) (holding that any appropriate consideration of revenue losses will look to future expectations, not past revenues only”), review denied (Minn. July 24, 1991). During the administrative phase of North Park, the Commission adopted the incremental cost approach for calculation of avoided purchased power costs.

      . The term "load factor" expresses the relationship between the amount of electricity consumed at times of peak usage on the system and total amount used.


author: WORKE, Judge.

text:
    Christina JENSEN, Respondent, v. David FHIMA, Appellant.
    No. A06-1409.
    Court of Appeals of Minnesota.
    May 29, 2007.
    Mitchel C. Chargo, Norman I. Tapie, Todd Murray, Gurstel Law Firm, P.A., Minneapolis, MN, for respondent.
    Donald C. Mark, Jr., Connie A. Lahn, Anthony Gabor, Fafinski Mark & Johnson, P.A., Eden Prairie, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge; DIETZEN, Judge; and WORKE, Judge.
   OPINION

WORKE, Judge.

On appeal from an order denying a motion to stay docketing and enforcement of a foreign judgment that had been renewed two times in the original forum, appellant argues that the district court erred because Minn.Stat. § 548.29 (2006) does not require an affidavit from appellant when the affidavit of his attorney was sufficient, nor does it require that he post security upon filing the motion to stay. Appellant also argues that the district court exceeded the scope of the motion by making findings on the merits when it should have granted the motion to stay to permit appellant to research and brief the validity and enforceability of the judgment based on a statute-of-limitations argument. Although the district court erred in holding that Minn.Stat. § 548.29 requires the personal affidavit of a judgment debtor and posting of a bond prior to grant of a stay, we affirm because the district court correctly determined that appellant failed to show a ground on which docketing of the judgment would be stayed.

FACTS

On February 8, 1994, the Los Angeles County Superior Court (superior court) entered a default judgment in the amount of $142,815.70 against appellant David Fhi-ma and in favor of respondent Christina Jensen. On October 12, 1999, the superior court granted respondent’s application for renewal of the judgment in the amount of $228,926.22. On August 1, 2005, respondent filed a second application for renewal of the judgment. On October 7, 2005, the superior court granted respondent’s application to renew the judgment in the amount of $352,612.82. Notice of renewal was sent to appellant at his home in Minneapolis, Minnesota. Appellant was notified that the renewal extended the “period of enforceability of the judgment until 10 years from the date the application for renewal was filed.” Appellant was notified that he could object to the renewal within 30 days after service of the notice; appellant was served on February 9, 2006, but failed to object.

On May 26, 2006, respondent filed the judgment in Hennepin County, under the Uniform Enforcement of Foreign Judgments Act (Act). On June 14, 2006, appellant was notified that the judgment would be docketed on July 7, 2006, unless he obtained an order from a Hennepin County district court judge staying docketing of the judgment. Appellant moved for a stay of the docketing of the judgment and filed an affidavit of one of his attorneys. The affidavit provided that appellant intended to bring a motion to vacate the judgment on the ground that the judgment was no longer enforceable pursuant to Minn.Stat. § 541.04 (2006) and Cal.Civ.Proc.Code § 683.120 (West 2007).

The district court held a hearing on July 6, 2006. Appellant argued that the motion to stay be granted in order for appellant to research and fully brief the legal basis for finding that the judgment was no longer enforceable. Appellant argued that renewal of the judgment only extended the period of enforceability in California; it did not create a new judgment, thus, the judgment expired under Minnesota’s ten-year statute of limitations. Respondent argued that although Minnesota, under Minn.Stat. § 541.04, would not recognize a judgment beyond ten years, it did not exclude a judgment that had been renewed and the enforcement extended.

The district court denied appellant’s motion for a stay of the docketing of the foreign judgment, finding that respondent validly renewed her judgment and it should be enforced in Minnesota. The district court also found that appellant’s motion failed procedurally because he failed to support his motion through sworn affidavit testimony and failed to provide security under Minn.Stat. § 548.29 (2006). This appeal follows.

ISSUES

I. Did the district court err in interpreting Minn.Stat. § 548.29, subd. 2 (2006) to require a personal affidavit from appellant?

II. Did the district court err in interpreting Minn.Stat. § 548.29, subd. 2 to require appellant to post security upon filing a motion to stay enforcement of the foreign judgment?

III. Did the district court err in exceeding the scope of the motion to stay enforcement of the foreign judgment by making findings on the merits and using those findings as a basis to deny the motion?

ANALYSIS

I.

Appellant argues that the district court erred in interpreting Minn.Stat. § 548.29, subd. 2 (2006). Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation and citations omitted). “A statute should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Id. (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). And “[w]e are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id.

Appellant argues that the district court erred in interpreting Minn.Stat. § 548.29, subd. 2, to require a personal affidavit from appellant, when his attorney provided an affidavit with his motion. Minn.Stat. § 548.29, subd. 2, provides:

If the judgment debtor at any time shows the district court any ground upon which enforcement of a judgment of any district court or the Court of Appeals or Supreme Court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

Respondent filed the California judgment in Hennepin County on May 26, 2006. Appellant was notified on June 14, 2006, that the judgment would be docketed unless he obtained an order to stay docketing of the judgment. Appellant moved for a stay, attaching an affidavit signed by his attorney. In the affidavit, appellant’s attorney recited factual information pertaining to the recorded California judgment. Appellant’s attorney provided in his affidavit that appellant intended to move the district court to vacate the judgment on the grounds that the judgment was no longer enforceable because the statute of limitations had expired.

The district denied appellant’s motion to stay enforcement of the judgment. Among the reasons for denying the motion, the district court found that the motion failed proeedurally because appellant failed to support the motion through sworn affidavit testimony. But Minn.Stat. 548.29, subd. 2, does not require appellant (the judgment debtor) to submit a personal sworn affidavit. The statute requires appellant to “show[ ] the district court any ground upon which enforcement of a judgment ... would be stayed.” Minn.Stat. 548.29, subd. 2 (emphasis added).

Respondent argues that appellant was required to support his motion with a personal affidavit because Minn.Stat. 548.28, subd. 1 (2006), provides that “[a]t the time of filing of the foreign judgment, the judgment creditor or the creditor’s lawyer shall make and file with the court administrator an affidavit....” Respondent suggests that because the Act provides in one section that the judgment creditor or the creditor’s attorney shall file an affidavit, and provides in another section that the judgment debtor show grounds upon which enforcement would be stayed, the Act shows the legislative intent behind requiring only the judgment debtor, and not an attorney, to show grounds to stay enforcement.

Appellant was required to move for an order from a district court judge staying docketing of the judgment. “An application to the court for an order shall be by motion which ... shall be in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Minn. R. Civ. P. 7.02(a).

If the motion is based on any facts, those facts should be stated in the motion in summary fashion, but with sufficient detail to give all parties, and the court, notice of the essential facts relied upon. If the facts have not been established either by admissions in pleadings or by discovery responses, they should be set forth in detail by affidavits of persons having knowledge of the facts.

1 David F. Herr Roger S. Haydock, Minnesota Practice 7.5 (2007).

Here, appellant’s attorney’s affidavit provided:

2. On May 26, 2006, a foreign judgment (“the Judgment”) in favor of [respondent] and against [appellant] was filed in Hennepin County District Court pursuant to Minn.Stat. 548.27....
3. The Judgment was originally filed in the Superior Court of California ... on February 8,1994....
4. The Judgment was allegedly renewed in California on two occasions; once on October 12, 1999, and a second time on August 1, 2005....
5. [Appellant] intends to bring a Motion to Vacate the Judgment on the grounds that the Judgment is no longer enforceable pursuant to Minn.Stat. 541.04 and Cal. [Civ. Proc.Code] 683.120....

Attached to the affidavit are exhibits of the May 26, 2006 filing of the foreign judgment, the February 8, 1994 judgment, and the applications for renewal. Appellant’s attorney had knowledge of the facts because all of the facts involve dates when the original judgment was filed, when the judgment was renewed, and when the judgment was filed in Hennepin County. Because appellant’s motion for an order to stay the docketing of the judgment was based on showing that the statute of limitations had expired, appellant’s attorney’s affidavit was appropriate and the district court erred in interpreting the statute to require a personal affidavit from appellant.

II.

Appellant also argues that the district court erred in interpreting Minn.Stat. 548.29, subd. 2, to require security upon filing of the motion. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., 584 N.W.2d at 393.

If the judgment debtor at any time shows the district court any ground upon which enforcement of [the foreign] judgment ... would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.

Minn.Stat. § 548.29, subd. 2 (emphasis added).

Here, the district court found that appellant’s motion failed for “procedural defects in failing to support his motion through sworn affidavit testimony and through his failure to provide security....” But the language of the statute requires posting security only if the district court grants the motion to stay enforcement of the judgment, not upon filing of the motion. This meaning is clear when compared to other rules requiring the posting of security. For example, Minn. R. Civ. P. 65.03(a) provides that “[n]o temporary restraining order or temporary injunction shall be granted except upon the giving of security by the applicant....” (Emphasis added.) Rule 65.03 requires the giving of security before a motion shall be granted; whereas Minn.Stat. 548.29, subd. 2, provides that the court shall stay enforcement of the judgment upon requiring security. “Giving” security before the granting of a motion compels the moving party to perform the act of posting security before the district court may grant the motion. “Requiring” security obliges the district court to order the posting of security at the time of granting the motion. Therefore, the district court erred in interpreting the statute to require the posting of security at the time of filing the motion and finding that appellant’s motion failed procedurally because security was not posted.

III.

Appellant argues that the district court erred by denying his motion to stay the docketing and enforcement of the judgment. Appellant contends that he made a showing of viable grounds on which the district court should have granted the motion to stay; specifically that the statute of limitations had expired on the enforcement of the judgment. The district court found that because respondent renewed the judgment against appellant, and appellant failed to object, the judgment was enforceable in Minnesota. Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

Appellant first argues that the district court improperly made findings on the merits of the statute-of-limitations argument. But Minn.Stat. § 548.29, subd. 2, requires appellant to show the district court grounds upon which the judgment would be stayed. The district court had to consider the merits of appellant’s argument in order to determine if he made an adequate showing under the statute.

Appellant also argues that the district court should have granted the motion because he showed that a statute-of-limitations issue exists, and because he showed the district court that a defense to the judgment exists, the district court should have granted the motion to stay enforcement of the judgment in order for him to move to vacate the judgment. The construction and applicability of a statute of limitations is a question of law, reviewed de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

The original judgment was entered in 1994. Respondent applied for renewal of the judgment in California in 1999 and 2005. “[T]he filing of the [renewal] application renews the judgment ... and extends the period of enforceability of the judgment as renewed for a period of 10 years from the date the application is filed.” Cal.Civ.Proc.Code § 683.120(b) (West 2007). The application was filed on August 1, 2005; thus, the judgment was renewed in California for a period of 10 years from August 1, 2005. Appellant argues, however, that the enforceability period was not extended in Minnesota because under the Act the time period for the enforcement of a judgment is provided in Minn.Stat. § 550.01 (2006), and for purposes of that time period, “the date of the entry of a foreign judgment is the original date of entry in the foreign jurisdiction.” Minn.Stat. § 548.27 (2006). Appellant suggests, then, that although the judgment is enforceable in California, it is not enforceable in Minnesota because the original judgment was entered in 1994. See Minn.Stat. § 550.01 (“The party in whose favor a judgment is given ... may proceed to enforce the same, at any time within ten years after the entry thereof.... ”).

Decisions in other jurisdictions on the application of statutes of limitations have been inconsistent. Some courts upheld enforcement of a revived foreign judgment.

Some uncertainty exists whether revival of the original judgment in the state of rendition will serve to overcome the recognizing forum’s shorter limitation on the original judgment.... One view distinguishes between revival prolonging the original judgment and revival having the effect of creating a new judgment: the former is said to continue to be barred by the shorter local statute, while the latter is entitled to full faith and credit. However, the implication in the U.S. Supreme Court’s decision in [Watkins v. Conway, 385 U.S. 188, 87 S.Ct. 357, 17 L.Ed.2d 286 (1966) (per curiam) ] is that any revival of a judgment is entitled to full faith and credit.

See Durham v. Arkansas Dept. of Human Servs., 322 Ark. 789, 912 S.W.2d 412, 414 (1995) (giving full faith and credit to a valid Illinois judgment, appropriately revived in that state, under that state’s limitations statute); but cf. Tillinghast v. Tillinghast, 285 F.Supp. 418, 420 (W.D.Tex. June 13, 1968) (“[Sjimply extending the statutory period for the enforcement of the judgment which had been entered in 1943, and did not constitute a new judgment entitled to recognition ... under the full faith and credit clause.”).

DECISION

We conclude that a renewed or revived judgment is entitled to full faith and credit. To conclude otherwise would be inconsistent and against the orderly enforcement of judgments. Therefore, the district court did not err in denying appellant’s motion to stay because the statute of limitations period has not expired on respondent’s renewed judgment.

Affirmed.


author:
ZINTER, Justice.
      SABERS, Justice

text:
    2007 SD 42
    Joy SCHELLER, Petitioner and Appellant, v. FAULKTON AREA SCHOOL DISTRICT # 24-3 and Faulkton Area Board of Education, Respondents and Appellees. Barb Vetter, Petitioner and Appellant, v. Faulkton Area School District # 24-3 and Faulkton Area Board of Education, Respondents and Appellees.
    Nos. 24192, 24193.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2007.
    Decided April 25, 2007.

      Anne Crowson Plooster, South Dakota Education Association, Pierre, South Dakota, Attorney for petitioners and appellants.
    Rory King of Bantz, Gosch & Cremer, L.L.C., Aberdeen, South Dakota, Attorneys for respondents and appellees.
   ZINTER, Justice.

[¶ 1.] Joy Scheller and Barb Vetter appeal the nonrenewal of their teaching contracts. They contend that the nonre-newals were ineffective because the Faulk-ton Area Board of Education failed to follow proper procedure. The circuit court concluded that the statutory procedure for nonrenewal was followed. We affirm.

Facts and Procedural History

[¶ 2.] The material facts are not in dispute. Both Scheller and Vetter were retired teachers who were rehired under one-year contracts for the 2004-2005 school year. As rehires, Scheller and Vet-ter were probationary teachers not entitled to the continuing contract rights provided by SDCL §§ 13-43-6.1, 6.2, and 6.3.

[¶ 3.] On April 11, 2005, the Board met to decide whether to renew the contracts of thirty-four teachers, which included Scheller and Vetter. The Board first discussed the issue in executive session. After the executive session, the Board reconvened in open session and formally voted to only offer new contracts to thirty of the thirty-four teachers. Scheller and Vetter were two of the four teachers who were not offered new contracts. Following the vote, the Board president directed the superintendent to send notices of nonrenewal to the four teachers whose contracts were not renewed. The notices were prepared that same night. There is no dispute that Scheller and Vetter received the superintendent’s written notice of nonrenewal before April 15th as required by SDCL 13-43-6.3.

[¶ 4.] Scheller and Vetter appealed their nonrenewals to the circuit court. They claimed that they were not only entitled to written notice by the superintendent, but also to an “affirmative vote” of the Board to not renew each contract. The circuit court concluded that the Board had come to a consensus concerning the nonrenewal of the four teachers; that the superintendent had authority to send the nonrenewal letters; and that the written notices satisfied the statutory procedure.

[¶ 5.] Our standard of review is well-settled:

A proceeding in circuit court on an appeal pursuant to SDCL 13-46-1 is a trial de novo. On appeal to the circuit court, the court may determine the legality of that decision. Strain v. Rapid, City School Bd., 447 N.W.2d 332, 338 (S.D.1989). However, great deference is given to the good faith determinations of school boards on decisions of whether to renew a teacher’s contract. Jager v. Ramona Bd. of Educ., 444 N.W.2d 21, 25 (S.D.1989). The appeal to the circuit court is not a trial de novo in the true sense of the phrase, as it has the limited function of receiving evidence for the sole purpose of determining the legality, and not the propriety, of the school board’s decision. Riter v. Woonsocket School Dist. No. 55-4, 504 N.W.2d 572, 574 (S.D.1993). The determination of legality is a two-pronged process: (1) whether the School Board acted legally, and (2) whether the School Board’s decision was arbitrary, capricious or an abuse of discretion. Id. On appeal to this Court, we review facts under the clearly erroneous standard, however, questions of law are reviewed de novo. Aman v. Edmunds Cent. Sch. Dist., 494 N.W.2d 198, 199 (S.D.1992).

Wuest v. Winner School District 59-2, 2000 SD 42, ¶ 12, 607 N.W.2d 912, 915-916 (quoting Hughes v. Stanley County School Bd., 1999 SD 65, ¶ 15, 594 N.W.2d 346, 351). The question in this case is whether SDCL 13-43-6.3 required an affirmative vote to nonrenew. This is a question of statutory interpretation. Statutory interpretation is a question of law, which we review de novo. Loesch v. City of Huron, 2006 SD 93, ¶ 3, 723 N.W.2d 694, 695.

[¶ 6.]That part of SDCL 13-43-6.3 (2004) governing the nonrenewal of non-continuing contract teachers provided:

Until a teacher is in or beyond the fourth consecutive term of employment as a teacher with the school district, a school board may or may not renew the teacher’s contract. The superintendent or school board shall give written notice of nonrenewal by April fifteenth but is not required to give further process or a reason for nonrenewal.

[¶ 7.] This statute only has two provisions concerning nonrenewal. It first provides that the Board “may or may not renew” a contract. Second, it requires a written notice of nonrenewal by the superintendent or school board. Because the second provision was concededly satisfied, we only examine the “may or may not renew” language to determine whether it required an affirmative vote of the Board to not renew each contract.

[¶ 8.] In our view, there is nothing in the language “may or may not renew” that requires an affirmative vote when a school board decides that it is not going to offer new contracts to teachers who have not obtained continuing contract status. “Words used are to be understood in their ordinary sense....” SDCL 2-14-1. The dictionary definition of “may” is “[t]o be allowed or permitted to.” The American Heritage College Dictionary, 839 (3d ed. 1997). “Not” is “[u]sed to express negation, denial, refusal, or prohibition.” Id. at 933 (emphasis added). The word “renew” is a verb, denoting action. Id. at 1155-1156. Considering the ordinary meaning of these words, we believe that the Legislature’s use of the word “may” gave the Board discretion to renew or to not renew. Obviously, in exercising that discretion, renewal would require the affirmative action of a vote to offer contracts to the desired teachers. In contrast, the word “not” gave the Board discretion to refuse to act to offer new contracts that were set to expire by their own terms. Therefore, in the ordinary sense, the statute authorized the Board to renew by the action of an affirmative vote or to nonrenew by a refusal to vote to offer a new contract.

[¶ 9.]In this case, in executive session, the Board reached a consensus on those teachers that would be offered new contracts and those who would not be offered new contracts. The official action that followed in the open session was an affirmative vote to only offer new contracts to thirty of the thirty-four teachers under consideration. We conclude that the refusal to act (vote) to offer new contracts to the other four teachers was within the Board’s statutory prerogative to “not renew” those one-year contracts. This was clearly the decision of the Board because the Board president contemporaneously instructed the superintendent to send notices of nonrenewal to the four teachers. This was all that was required by the statute. Scheller and Vetter’s interpretation would require us to read “affirmative vote” into the statute, something that we may not do:

While it is fundamental that we must strive to ascertain the real intention of the lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent.

Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984) (internal citations omitted).

[¶ 10.] Scheller and Vetter, however, contend that without an affirmative vote, the superintendent had no authority to send the letters of nonrenewal. They cite two cases, both of which are inapposite. In Cutshaw v. Karim, 256 N.W.2d 566 (S.D.1977), a teacher claimed that because the board had not signed the letter of nonrenewal, the notice was ineffective. In concluding that the notice was effective, this Court quoted the letter, which indicated that the school board had passed a motion to inform the teacher that his contract was not being renewed. Id. at 567, 568. From this, Scheller and Vetter argue that an affirmative vote is required because “inherent in [this] Court’s ruling was the fact that the school board voted to nonrenew the teacher in question.” While the specific facts of that case apparently included a vote on a motion, neither the issue of the case nor our language suggests that an affirmative vote to not renew was a prerequisite for the superintendent’s notice of nonrenewal.

[¶ 11.] Memphis Community Schools v. Henderson, 152 Mich.App. 43, 394 N.W.2d 12 (1986), is also distinguishable. Henderson was decided on Michigan’s statutory scheme, which included a requirement that school boards give written notice of whether a probationary teacher’s work was satisfactory. Failure to give that notice was conclusive evidence of satisfactory work, which apparently required extension of the teacher’s contract. Id. at 50-51, 394 N.W.2d at 15-16. However, under Michigan’s statutes and case law, the decision on the satisfactory nature of a teacher’s work required a record vote, id. at 51, 394 N.W.2d at 16, and South Dakota’s statute does not require a record vote.

[¶ 12.] In our case, the Board followed both provisions of the statute. Although it voted to renew thirty contracts, it exercised its discretionary authority to refuse to offer contracts to Scheller and Vetter. Following the vote to only offer contracts to thirty of the thirty-four teachers, the Board president instructed the superintendent to give Scheller and Vetter written notices that they would not be offered new contracts. Because the Board had the discretion to refuse to offer new contracts, and because these teachers were provided with the requisite written notice of the Board’s decision, the Board complied with the procedural requirements of the statute.

[¶ 13.] Affirmed.

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

[¶ 15.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 16.] WE SHOULD eliminate the following quote from OUR standard of review because it is obsolete, inaccurate and inconsistent with our practice and the remaining portion of the standard of review paragraph:

The inconsistent quotation is:

The appeal to the circuit court is not a trial de novo in the true sense of the phrase, as it has the limited function of receiving evidence for the sole purpose of determining the legality, and not the propriety, of the school board’s decision.

(Emphasis added). This quotation is obsolete, inaccurate and inconsistent with our practice and the remaining portion of the standard of review paragraph because the second prong of our determination includes whether the School Board’s decision was arbitrary, capricious or an abuse of discretion, all of which deal with the propriety of a board’s decision. Even the present case deals with the propriety, not just the legality of the Board’s decision.

[¶ 17.] Therefore, we should rework our standard of review to conform to our practice, accuracy and consistency.

      . These cases were appealed separately as Scheller v. Faulkton School District, # 24192 and Vetter v. Faulkton School District, # 24193. Because the cases involve the same facts and issue, we have consolidated them.

      . Scheller and Vetter also argue that nonre-newal of contracts is a “firing” for the upcoming year, and therefore, the firing must be done in open session by an affirmative vote. However, refusing to renew a non-continuing contract teacher is not a firing: it is simply refusing to offer a new contract to a teacher who has no continuing contract rights. We also note that the vote on which teachers would be renewed and not renewed occurred in a public session.


author: ZINTER, Justice.

text:
    2007 SD 43
    Jerald ZUBKE, Plaintiff and Appellant, v. MELROSE TOWNSHIP, Grant County, South Dakota, Defendants and Appellees.
    No. 24279.
    Supreme Court of South Dakota.
    Considered on Briefs on March 19, 2007.
    Decided April 25, 2007.

      William E. Coester, Milbank, South Dakota, Attorney for plaintiff and appellant.
    William C. Garry of Cadwell, Sanford, Deibert & Garry, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] Melrose Township lowered its tax levy at its annual meeting. After being informed of the ramifications of the reduction, a special meeting was held to reconsider. Upon reconsideration, the levy was raised to the original amount. Jerald Zub-ke appealed the township’s reconsideration. The circuit court dismissed, and Zubke appeals. We affirm.

Facts and Procedural History

[¶ 2.] Melrose Township held its annual meeting on March 7, 2006. Those present at that meeting voted to reduce the tax levy from $20,000 to $10,000. The voters were apparently unaware of SDCL 10 — 13— 35, which limited future annual increases in tax levies after a levy had been reduced. After the meeting, the Township Clerk spoke with the Grant County Auditor, who informed the clerk of the ramifications of SDCL 10-13-35. The clerk then informed the township supervisors. Once apprised of this statute and the time it would take to return the levy to its former level, a petition was circulated to reconsider the vote by which the levy was reduced.

[¶ 3.] On April 10, 2006, a special meeting was held to reconsider. Only those voters who participated in the initial meeting were allowed to vote on the motion to reconsider. Following a successful vote to reconsider, the levy was returned to $20,000 by the township voters who were present at the special meeting.

[¶ 4.] On April 11, 2006, the township certified the $20,000 levy to the Grant County Auditor, and the levy was accepted. Zubke appealed the April 10th reconsideration and the April 11th certification. Zubke now appeals the circuit court’s dismissal, which raises the issue:

Whether Melrose Township lawfully reconsidered the levy made on March 7, 2006, at a special meeting held on April 10, 2006.

Decision

[¶ 5.] Zubke argues that the reconsideration and certification were unlawful because the relevant statutes: 1) prohibited a motion to reconsider from being made more than one month after passage of the original motion; 2) prohibited raising a tax levy at a meeting other than the annual meeting; and 3) prohibited certification of a tax levy more than ten days after the last Tuesday in March. These arguments raise questions of statutory interpretation, which are reviewed de novo. Anderson v. City of Tea, 2006 SD 112, ¶ 5, 725 N.W.2d 595, 597.

Time for Reconsideration

[¶ 6.] Zubke first argues that SDCL 8-3-10 prevented the township from reconsidering the tax levy at any time other than the original meeting. SDCL 8-3-10 governs the time for reconsideration of votes taken at township meetings:

At the opening of every township meeting the moderator shall state the business to be transacted, and the order in which it shall be entertained, and no proposition to vote a tax shall be acted on out of the order of business as stated by the moderator, and no proposition to reconsider any vote shall be entertained unless such proposition to reconsider is made within one hour from the time such vote was passed, or the motion for such reconsideration is sustained by a number of voters equal to a majority of all the names entered upon the poll list at such election up to the time such motion is made; and all questions upon motions made shall be determined by a majority of the voters voting; and the moderator shall ascertain and declare the result of the votes on each question.

(Emphasis added.) Focusing on the one-hour limitation in this statute, Zubke contends that the motion to reconsider at the subsequent special meeting was unlawful because it occurred more than one hour after the original vote.

[¶ 7.] However, Zubke’s focus on the one-hour limiting language in SDCL 8-3-10 overlooks the fact that the statute is written in the alternative. The statute plainly provides that motions may be reconsidered within an hour “or [if] the motion ... is sustained by a number of voters equal to a majority of all the names entered upon the poll list....” Id. (emphasis added). Because the Township followed this alternative method of reconsideration, we conclude that the reconsideration conducted at the subsequent meeting was timely.

Reconsideration of Tax Levies-At Meetings Other Than the Annual Meeting

[¶ 8.] Zubke next argues that SDCL 8-3-2(8) and SDCL 8-3-5 did not allow the tax levy decision to be made at any meeting other than the annual meeting. SDCL 8 — 3—2(8) authorizes a township to set the tax levy at the annual meeting:

The voters of each organized civil township have power at their annual meeting ...
(8) To vote to raise by taxation such sums as they may deem expedient for authorized township purposes, but the aggregate of such sums shall not exceed the limit of tax levy prescribed by this code.

Because this statute only refers to the annual meeting, Zubke contends that the reconsideration of a tax levy at a subsequent special meeting was unlawful. We disagree.

[¶ 9.] In this case, the voters of Mel-rose Township followed the statute by “rais[ing] by taxation such sums as they [deemed] expedient” at the March 7, 2006 annual meeting. SDCL 8 — 3—2(8). Furthermore, SDCL 8-3-10 does not limit motions to reconsider to matters other than taxation. Therefore, SDCL 8-3-10 authorized the township voters to reconsider their initial tax levy decision at the April 10, 2006 special meeting. Zubke’s contention would have merit only if no tax levy had been set at the annual meeting. However, that did not occur in this case. Here, the tax levy was initially set at the annual meeting, and therefore, SDCL 8-3-10 authorized the township to reconsider the tax levy at the subsequent special meeting.

[¶ 10.] Zubke also argues that the notice of the special meeting was insufficient to “set” the tax levy at the special meeting. SDCL 8-3-5 governed the notice required for township special meetings. It provided in relevant part that:

Every notice given for a special township meeting shall specify the purpose for which it is to be held, and no business shall be transacted at such meeting except such as is specified in such notice.

Id.

[¶ 11.] Zubke specifically contends that because the notice of the special meeting indicated that the purpose of the meeting was “reconsidering the motion for a tax call,” there was no notice that the tax levy might be set at $20,000. We disagree with this semantical argument.

[¶ 12.] In this case, the notice of a special meeting indicated that the purpose of the special meeting was the reconsideration of the initial tax decision. We believe that this notice gave fair warning of the purpose of the special meeting, whether one wishes to label the purpose of that meeting as reconsidering the motion to set the original levy or simply resetting the initial tax levy. Therefore, the notice was sufficient to allow a change in the tax levy at the special meeting.

Certification of the Tax Levy

[¶ 13.] Zubke finally argues that the April 11th certification was too late. He contends that certification of the tax levy was not allowed more than ten days after the last Tuesday in March. Although Zub-ke acknowledges that SDCL 10-12-7 authorized tax levies to be certified by October 1st of each year, he contends that statute was limited by SDCL 10-12-26, which provided that certifications must occur within ten days of the last Tuesday in March following the annual meeting.

[¶ 14.] Zubke’s argument requires us to interpret two conflicting statutes. “[W]here statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them ‘harmonious and workable.’ ” Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789 (quoting Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992)). Furthermore, “[w]e should not adopt an interpretation of a statute that renders the statute meaningless when the Legislature obviously passed it for a reason.” Peterson, ex rel. Peterson v. Burns, 2001 SD 126, ¶ 30, 635 N.W.2d 556, 567-568 (citing Faircloth v. Raven Ind. Inc., 2000 SD 158, ¶ 9, 620 N.W.2d 198, 202).

[¶ 15.] If we were to accept Zub-ke’s argument that SDCL 10-12-26 controls in all circumstances, it would render both SDCL 10-12-7 and SDCL 8-3-10 meaningless. If the certification must always occur within ten days of the last Tuesday in March, the October deadline referred to in SDCL 10-12-7 and the authorization to reconsider previous actions referred to in SDCL 8-3-10 would have no meaning. On the other hand, a harmonious interpretation of the statutes, which would give effect to all, would require that when a levy is set at the annual meeting and is not reconsidered, the “ten days after the last Tuesday in March” deadline for certification applies. However, when a levy is reconsidered under SDCL 8-3-10, such that the “ten days after the last Tuesday in March” deadline cannot be met, then the October 1st deadline applies. This is the only interpretation that gives effect to all of the statutes.

[¶ 16.] Affirmed.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . SDCL 10-13-35 provides in part:
      For taxes payable in 1997, and each year thereafter, the total amount of revenue payable from taxes on real property within a taxing district, excluding the levy pursuant to § 10-13-36, may increase no more than the lesser of three percent or the index factor, as defined in § 10-13-38, over the amount of revenue payable from taxes on real property in the preceding year, excluding the amount of taxes levied pursuant to § 10-13-36. After applying the index factor, a taxing district may increase the revenue payable from taxes on real property above the limitations provided by this section by the percentage increase of value resulting from any improvements or change in use of real property, annexation, minor boundary changes, and any adjustments in taxation of property separately classified and subject to statutory adjustments and reductions under chapters 10-4, 10-6, 10-6A, and 10-6B, except § 10-6-31.4, only if assessed the same as property of equal value. A taxing district may increase the revenue it receives from taxes on real property above the limit provided by this section for taxes levied to pay the principal, interest, and redemption charges on any bonds issued after January 1, 1997, which are subject to referendum, scheduled payment increases on bonds and for a levy directed by the order of a court for the purpose of paying a judgment against such taxing district.

      . Although Zubke contends there is a factual conflict concerning the voting, the circuit court specifically found that only those persons who attended the annual meeting were allowed to vote on the motion to reconsider.

      . Zubke also cites Robert’s Rules of Order as authority for the proposition that reconsidera-tions must be made during the same meeting as the original motion. However, Zubke has not cited any authority making those rules binding on townships. He further concedes that Melrose Township had not adopted those rules.

      . Zubke also argues that the alternative method must be used at the same meeting. However, he cites no authority for his contention. Moreover, the text of the statute does not suggest that the alternative method must be utilized at the same meeting.

      . SDCL 10-12-7 provided in part:
      All county, township, municipal, sanitary district, and school taxes, except special assessments in municipalities, shall be levied or voted in specific amounts of money required and within the limitations fixed by law. The amount of such levies made by any of such taxing districts except counties shall be certified to the county auditor of the county by the clerk or corresponding officer of the taxing district on or before the first day of October of each year and such certificates shall be filed by such auditor as permanent records of his office and be open to public inspection at all times.

      . SDCL 10-12-26 provided in part:
      On the last Tuesday in March of each year, or within ten days thereafter, the board of supervisors of each organized civil township shall levy the annual taxes for the ensuing year, as voted at the annual town meeting, and immediately thereafter the township clerk shall certify to the county auditor the amounts of such levies....


author: MEIERHENRY, Justice. SABERS, Justice

text:
    2007 SD 46
    ESTATE OF Brian Lee GUSTAFSON, Deceased.
    No. 24072.
    Supreme Court of South Dakota.
    Considered On Briefs on March 19, 2007.
    Decided May 2, 2007.

      Shawn M. Nichols of Cadwell, Sanford, Deibert & Garry, L.L.P. Sioux Falls, South Dakota, Attorneys for appellant Suzanne Gustafson.
    Thomas E. Alberts, Avon, South Dakota, Bradley D. Kerner of Kerner Law Office Armour, South Dakota, Attorneys for ap-pellees Jan Klahs and Steve Gustafson.
   MEIERHENRY, Justice.

[¶ 1.] After Brian Lee Gustafson (Decedent) died, his siblings filed a Petition for Adjudication of Intestacy, Determination of Heirs, and Appointment of Personal Representative (Petition of Intestacy). Decedent’s former wife, Suzanne Gustaf-son (Suzanne), objected and argued that a copy of Decedent’s will should defeat the claim of intestacy. The trial court granted the petition and denied Suzanne’s objection. Suzanne appeals and we affirm.

FACTS

[¶ 2.] Decedent died July 20, 2005, in his fifth wheel trailer near Phoenix, Arizona at the age of sixty-one. After a career in education, Decedent retired two and one half years prior to his death. Decedent had been married twice during his lifetime but was single at the time of his death. In the last few years of his life, Decedent had been aloof and distant from his friends and family.

[¶ 3.] After Decedent’s death, his sister Jan Klahs (Klahs) found a copy of an unsigned will executed in 1985, among his personal effects, all of which he kept in his fifth wheel trailer. Klahs gave the copy to her attorney in South Dakota, who continued looking for the original, without success. The copy indicated that Decedent had executed a will on July 3, 1985, in Des Moines, Iowa, which named Suzanne Raisch as the sole beneficiary. Suzanne Raisch became Suzanne Gustafson upon her marriage to Decedent in April of 1986. The couple divorced on August 10, 2000, and had little contact after the divorce. Klahs’ attorney contacted Suzanne about the 1985 will, and Suzanne told him that she was not aware of its existence.

[¶4.] The main issue before the trial court was whether Decedent intended to revoke the 1985 will. At the hearing on the matter, Klahs testified that in 2004, she specifically asked Decedent whether he had a will and he told her that he did not. Suzanne testified that she and Decedent had discussed making a will when they were married but never actively pursued the idea. Suzanne claimed that Decedent had contacted her after their divorce and told her that he still wanted to provide for her and her children.

[¶ 5.] After hearing all of the evidence, the trial court concluded that the original will had not been found despite a “careful and exhaustive search.” The trial court also found that Suzanne had not presented sufficient evidence to rebut the presumption that Decedent had revoked the lost original will. Accordingly, the trial court granted the Petition of Intestacy pursuant to SDCL 29A-3-402(d).

[¶ 6.] Suzanne appeals and raises the following issue.

ISSUE

Whether the trial court erred in granting the Petition of Intestacy based on the finding that Suzanne had not presented sufficient evidence to rebut the presumption that Decedent had revoked the original will.

STANDARD OF REVIEW

[¶ 7.] “We review a trial court’s finding that a lost will has been revoked under the clearly erroneous standard.” In re Estate of Long, 1998 SD 15, ¶ 9, 575 N.W.2d 254, 255 (quoting In re Estate of Modde, 323 N.W.2d 895, 898 (S.D.1982)).

Under the clearly erroneous standard, the question for this Court is not whether we would have made the same findings that the trial court did, but, whether on the entire evidence, we are left with a definite and firm conviction that a mistake has been committed. That this Court may have found the facts differently had we heard the testimony is no warrant for us to substitute our judgment for the trial court’s carefully considered findings.

Id. (quoting Guardianship and Conservatorship of Lanning, 1997 SD 81, ¶ 9, 565 N.W.2d 794, 796).

ANALYSIS

[¶ 8.] South Dakota law allows a copy of a will to be admitted to probate if “at least one credible witness” can testify that “the copy is a true copy of the original.” SDCL 29A-3-402(d). Additionally, the law requires that the court must be “reasonably satisfied that the will was not revoked by the testator.” Id. The statute provides in relevant part as follows:

If the original will, or certified copy of the will as probated in another jurisdiction, is not available, the contents of the will can be proved by a copy of the will and the testimony or affidavit of at least one credible witness that the copy is a true copy of the original, and the will may be admitted to probate if the court is reasonably satisfied that the will was not revoked by the testator.

Id.

[¶ 9.] In Estate of Long, we recognized that “the presumption that a lost will has been revoked” was codified in SDCL 29A-3-402(d). 1998 SD 15, ¶ 14, 575 N.W.2d at 256 (stating that the presumption is evident by the express language of SDCL 29A-3-402(d)). The presumption arises when a careful and exhaustive search fails to produce the original will. Estate of Modde, 323 N.W.2d at 898. The presumption may be rebutted by evidence, circumstantial or otherwise, which “reasonably satisfied]” the trial court that the will was not revoked. SDCL 29A-3-402(d). The “reasonably satisfied” standard of proof is low and requires a “minimal level of certainty.” State v. Bailey, 464 N.W.2d 626, 628 (S.D.1991) (discussing reasonably satisfied standard of proof in the context of probation). Consequently, when the original will was not located, Suzanne had the burden of overcoming the presumption that the Decedent had revoked it.

[¶ 10.] Suzanne argues that the presumption should not apply because Klahs failed to conduct a “careful and exhaustive search” for the original will. Suzanne contends that the search was not exhaustive because Klahs failed to contact any of the four witnesses to the execution of the original will, who may have been able to provide knowledge of the will’s drafter or its possible location. Klahs testified that she searched through all of Decedent’s belongings and failed to find anything but the copy of the 1985 will. She promptly'provided the copy to her attorney, who was unable to locate the original. The trial court was in the best position to judge the credibility of the witnesses. Edinger v. Edinger, 2006 SD 103, ¶ 15, 724 N.W.2d 852, 854. Thus, we cannot say that the trial court’s finding that Klahs conducted a careful and exhaustive search was clearly erroneous.

[¶ 11.] Suzanne also argues that the trial court erred when it concluded that she failed to rebut the presumption that the lost will had been revoked. Suzanne argues that the trial court should not have granted the Petition for Intestacy because there was no evidence that Decedent ever intended to revoke the 1985 will. Suzanne, however, misses the effect of a legal presumption. The effect of a presumption of law is “to invoke a rule of law compelling the [factfinder] to reach the conclusion in the absence of evidence to the contrary from the opponent.” In re Estate of Duebendorfer, 2006 SD 79, ¶ 45, 721 N.W.2d 438, 450 (Zinter, J., concurring) (additional citations omitted). We explained the burden of proof needed to overcome the presumption as follows:

[A] presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

Id. (quoting SDCL 19-11-1). While the presumption did not alter the ultimate burden of persuasion, it did oblige Suzanne to come forward with evidence to rebut the presumption. She provided little evidence of rebuttal.

[¶ 12.] First, Suzanne admitted that she was not aware that Decedent had executed the 1985 will. She claimed they had talked about executing a will during the marriage but had not done so. Second, Suzanne testified that she had only spoken to the Decedent once since their divorce five years ago. Although Suzanne claimed that shortly after their divorce Decedent told her he wanted to provide for her children, the trial court noted that the conversation contradicted Suzanne’s argument because the 1985 will only named Suzanne as the sole beneficiary. Thus, if Decedent had wanted to provide for Suzanne’s children, he would have had to revoke or amend the 1985 will.

[¶ 13.] “The credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by the trial court, and we give due regard to the trial court’s opportunity to observe the witnesses and examine the evidence.” In re Estate of Schnell, 2004 SD 80, ¶ 8, 683 N.W.2d 415, 418. Suzanne had the burden to overcome the presumption that the will had been revoked. Estate of Long, 1998 SD 15, ¶ 15, 575 N.W.2d at 257. Considering the limited evidence Suzanne offered, the trial court’s finding that Suzanne failed to overcome the presumption that the lost original will was revoked was not clearly erroneous.

[¶ 14.] Affirmed.

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

[¶ 16.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 17.] I write specially to point out that the issue whether the trial court erred in determining the will was revoked is moot. SDCL 29A-2-804 indicates that any property dispositions in the 1985 will from Brian to Suzanne were revoked due to the subsequent divorce. The statute provides in relevant part:

(b) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
(1) Revokes any revocable (i) disposition or appointment of property made by a divorced individual to a former spouse in a governing instrument....

SDCL 29A-2-804.

[¶ 18.] Therefore, if the will was revoked, Brian and Jan would take all through the rules of intestacy. If the will was not revoked, then they would take as the sole contingent beneficiaries of the will because SDCL 29A-2-804 revokes any property dispositions to Suzanne in the will.

      . The trial court did not reach the issue addressed by the concurrence of whether the will was automatically revoked as a result of Decedent and Suzanne’s divorce because the trial court concluded that Suzanne failed to overcome the revocation presumption in SDCL 29-3-402(d). Consequently, that issue was not raised on appeal to this Court.


author: CADY, Justice.

text:
    Cheryl C. WOODS, Appellant, v. Steven YOUNG, Dean Lerner, Robert Galbraith, Department of Inspections and Appeals, and the State of Iowa, Appellees.
    No. 05-1290.
    Supreme Court of Iowa.
    May 11, 2007.
    Rehearing Denied June 5, 2007.
    Pamela J. Walker of Sherinian & Walker Law Firm, West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and John R. Lund-quist, Assistant Attorneys General, for ap-pellees.
   CADY, Justice.

This appeal was brought after the district court dismissed the appellant’s lawsuit for retaliatory discharge. We transferred the case to the court of appeals. The court of appeals affirmed the district court decision without an opinion under Iowa Rule of Appellate Procedure 6.24(1) and (4). We granted further review. Upon our review, we affirm the district court judgment.

I. Background Facts and Proceedings.

This lawsuit evolves from two prior lawsuits. In the first lawsuit, Cheryl Woods brought a small claims action against her employer, the State of Iowa, after it refused to reimburse her for expenses incurred in her employment. She recovered a judgment. In the second lawsuit, Woods sued the State for retaliatory discharge from employment. She alleged the State terminated her from her employment for pursuing the small claims action, in violation of Iowa’s Wage Collection Act, Iowa Code chapter 91A (2003), and in violation of public policy derived from the prohibition under Iowa Code section 91A.10(5) against terminating an employee for bringing an action against an employer. The second lawsuit was terminated when the district court granted the State’s motion to dismiss. The district court held chapter 91A did not create a private cause of action for an employee. It also held there was no common law action for wrongful discharge based on public policy derived from chapter 91A, and in particular section 91A.10(5). Woods did not appeal the district court’s order and judgment.

Woods then filed the present action based on the same underlying facts. However, Woods alleged she was terminated from her employment contrary to the public policy as derived from a criminal statute, Iowa Code section 720.4, prohibiting tampering with a witness. Woods claimed she was terminated due to the testimony and evidence she presented during the hearing in the small claims action.

The district court dismissed the action, and Woods filed this appeal. She claims the doctrine of res judicata does not preclude a second wrongful termination action after dismissal of the first wrongful termination action because the first dismissal was not based on the merits of her prior claim. Instead, she claims the lawsuit was dismissed because claims concerning discharge from employment under chapter 91A are required to be brought in district court by the labor commissioner, not by private parties. See Iowa Code § 91A.10(5) (“Any employee may file a complaint with the commissioner alleging discharge or discrimination within thirty days after such violation occurs.”). Consequently, Woods claims the current lawsuit is a different claim than the first lawsuit because it is based on a private cause of action independent of chapter 91A, and is outside the doctrine of res judicata.

II. Issue and Standard of Review.

“On further review, we can review any or all of the issues raised on appeal or limit our review to just those issues brought to our attention by the application for further review.” Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005). The issue brought to our attention by Woods’s application for further review is the same issue she presented in her original appeal and to the district court. The issue we must decide is whether the district court properly applied the doctrine of res judica-ta in granting the State’s motion to dismiss.

We review a motion to dismiss for errors at law. Crall v. Davis, 714 N.W.2d 616, 619 (Iowa 2006). Thus, “we are not ... bound by the district court’s legal conclusions or application thereof.” Wilson v. Ribbens, 678 N.W.2d 417, 418 (Iowa 2004). However, if the district court made findings of fact in ruling on the motion, we are bound by those findings “so long as they are supported by substantial evidence.” Id. Substantial evidence will generally support the findings if they were deduced from the pleadings. Id.

III. Discussion.

The doctrine of res judicata requires the dismissal of this action. Although Woods could have initiated a complaint with the labor commissioner following her termination from employment, she chose to assert a right to a cause of action in district court based on the termination of her employment. Once she made this choice and invoked the jurisdiction of the district court, she was required to allege all theories of recovery to support the alleged wrong against her. An action between the same parties involving the same claim that has been adjudicated by the court is final as to all issues that could have been presented to the court. Bennett v. M.C. No. 619, Inc., 586 N.W.2d 512, 516 (Iowa 1998) (“[A] final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action”). A party is not entitled to bring a second action simply by alleging a new theory of recovery for the same wrong. Id. Woods was required to allege her various theories, including her public policy theory under section 720.4, in the first action.

We conclude the district court properly dismissed Woods’s current lawsuit. The prior action was an adjudication of the merits. See Iowa R. Civ. P. 1.946 (“All dismissals not governed by rule 1.943 or not for want of jurisdiction or improper venue, shall operate as adjudications on the merits unless they specify otherwise.”). Woods chose to pursue her prior claim independent of her right to file a complaint with the commissioner of labor, and the district court had subject matter jurisdiction to determine if Woods could bring the private cause of action she sought. See Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 401 (Iowa 1998) (noting the doctrine of res judicata does not apply if subject matter jurisdiction was lacking in the previous action). The doctrine of res judicata was properly applied by the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except HECHT and APPEL, JJ., who take no part.