author: SANDSTROM, Justice.

text:
    2001 ND 116
    TRADE ’N POST, L.L.C., Plaintiff v. WORLD DUTY FREE AMERICAS, INC., and Ammex Tax & Duty Free Shops West, Inc., Defendants.
    No. 20000176.
    Supreme Court of North Dakota.
    June 14, 2001.

      W. Todd Haggart (argued), Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for plaintiff.
    David J. Wallace-Jackson (appeared), Robins, Kaplan, Miller & Ciresi, Minneapolis, MN, for plaintiff.
    Charles A. Gilman (argued), S. Penny Windle (appeared), and Kevin J. Burke, Cahill Gordon & Reindel, New York, NY, for defendants.
    Stephen W. Plambeck (appeared), Nilles, Hansen & Davies, Ltd., Fargo, for defendants.
   SANDSTROM, Justice.

[¶ 1] Invoking N.D.R.App.P. 47, the United States District Court, Northeastern Division for the District of North Dakota, has certified the following questions of law to this Court:

1) Does a private party have the right to bring an action for money damages for a violation of North Dakota’s Unfair Discrimination Law (N.D.C.C. § 51-09) under the facts as alleged in Trade ’N Post’s complaint?
2) Does a private party have the right to bring an action for money damages for a violation of North Dakota’s Unfair Trade Practices Law (N.D.C.C. § 51-10) under the facts as alleged in Trade ’N Post’s complaint?
3) Does North Dakota’s common law recognize a claim for relief for wrongful interference with business under the facts as alleged in Trade ’N Post’s complaint?

[¶ 2] We conclude there is no private right of action for damages under either the Unfair Discrimination Law or the Unfair Trade Practices Law, and we recognize a common law tort claim for unlawful interference with business.

I

[¶ 3] World Duty Free Americas, Inc., and Ammex Tax & Duty Free Shops West, Inc. (collectively referred to as “Ammex”), operate duty-free stores under the trade name “Ammex” at various locations around the country, including a location near the Canadian border crossing at Pembina, North Dakota. Trade ’N Post, L.L.C., is a North Dakota limited liability company that opened a competing duty-free store in Pembina in 1998. Trade ’N Post alleges Ammex has engaged in anticompetitive and predatory behavior, including charging prices below cost, charging lower prices at its Pembina location than it charges for the same goods at its other North Dakota locations, pressuring major alcohol and tobacco suppliers not to sell their products to Trade ’N Post, and pressuring tour bus operators not to stop at Trade ’N Post’s duty-free store.

[¶ 4] In 1999, Trade ’N Post brought suit against Ammex in federal district court, alleging violations of the state and federal antitrust acts, violation of the Unfair Discrimination Law, violation of the Unfair Trade Practices Law, and wrongful interference with business. The federal district court refused to exercise supplemental jurisdiction over the claims based upon the Unfair Discrimination Law, the Unfair Trade Practices Law, and wrongful interference with business, and dismissed those claims without prejudice. The antitrust claims proceeded to discovery.

[¶ 5] Trade ’N Post subsequently filed a complaint in state district court realleg-ing the three dismissed claims. Ammex removed the state case to federal district court, thereby returning the three claims to the federal court, and the two pending actions were consolidated. Ammex moved to again dismiss the three claims, and Trade ’N Post moved for certification of questions of law to this Court. The federal district court granted the motion to certify questions to this Court under N.D.RApp.P. 47 by an order dated June 13, 2000.

[¶ 6] This Court has jurisdiction under N.D.R.App.P. 47.

II

[¶ 7] Trade ’N Post argues this Court should recognize an implied private right of action for damages under the Unfair Discrimination Law, N.D.C.C. ch. 51-09, and the Unfair Trade Practices Law, N.D.C.C. ch. 51-10. We conclude there is no private right of action for damages under either chapter.

A

[¶ 8] The Unfair Discrimination Law prohibits a company from selling identical products for different prices at different locations in the state, if done for the purpose of destroying a competitor’s business:

Unfair discrimination in purchase and sale of commodities. Any person, firm, company, association, corporation, or limited liability company, foreign or domestic, doing business in this state and engaged in the production, manufacture, or distribution of any commodity in general use, that, for the purpose of destroying the business of a competitor in any locality, intentionally shall discriminate between different sections, communities, or cities of this state by selling-such commodity at a lower rate in one section, community, or city than is charged therefor by said party in another section, community, or city, after making due allowance for the difference, if any, in the grade or quality and in the actual cost of transportation from the point of production, if a raw product, or from the point of manufacture, if a manufactured product, is guilty of unfair discrimination.

N.D.C.C. § 51-09-01. Violation of this provision is a class A misdemeanor. N.D.C.C. § 51-09-02. In addition, N.D.C.C. § 51-09-04 gives the attorney general broad authority to investigate suspected violations and to pursue civil remedies in the name of the State:

Authority of attorney general to investigate and prosecute unfair discrimination when complaint is made. If a complaint is made to the attorney general that any person is guilty of unfair discrimination committed for any of the purposes enumerated in section 51-09-01, the attorney general shall investigate the matter complained of, and for that purpose the attorney general may subpoena witnesses, administer oaths, take testimony, and require the production of books or other documents belonging to the person complained against. If, in the attorney general’s opinion, sufficient grounds exist therefor, the attorney general shall prosecute an action in the name of the state of North Dakota to annul the charter, if the person complained against is a corporation or limited liability company, or to revoke the permit or license of the person complained against.

[¶ 9] The Unfair Trade Practices Law prohibits the sale of goods below cost, if done with the intent to lessen competition, restrain trade, or create a monopoly:

Unfair advertising, offer to sell, or sale. Any advertising, offer to sell, or sale of any merchandise, either by retailers or wholesalers, at less than cost as defined in this chapter, which has the intent or the effect of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor or otherwise injuring a competitor, impairs and prevents fair competition, injures public welfare, and is unfair competition and contrary to public policy and the policy of this chapter, where the result of such advertising, offer, or sale is to tend to deceive any purchaser or prospective purchaser, or substantially to lessen competition, or unreasonably to restrain trade, or to tend to create a monopoly in any line of commerce.

N.D.C.C. § 51-10-03. Violation of the Unfair Trade Practices Law constitutes a class A misdemeanor. N.D.C.C. § 51-10-05. The attorney general has broad investigatory powers under N.D.C.C. ch. 51-10. See N.D.C.C. §§ 51-10-05.1, 51-10-05.2, 51-10-05.3. Either the attorney general or any person injured by a violation of N.D.C.C. ch. 51-10 may sue for injunctive relief:

Injunctional relief may be had in addition to other penalties — Duty to commence actions. In addition to the penalties provided in this chapter, the courts of this state are invested with the jurisdiction to prevent and restrain violations of this chapter by injunctional proceedings. The attorney general and the several state’s attorneys shall institute suits in behalf of this state, to prevent and restrain violations of the provisions of this chapter. Any person damaged, or who is threatened with loss or injury, by reason of a violation of the provisions of this chapter, is entitled to sue for and have injunctive relief in the district court against any damage or threatened loss or injury by reason of a violation hereof.

N.D.C.C. § 51-10-06.

B

[¶ 10] Trade ’N Post concedes these code provisions do not expressly provide a private action for damages. It argues, however, we should imply a private right of action for damages under both chapters.

[¶ 11] We have previously employed the four-part test enunciated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), when determining whether a private right of action should be implied under a federal statute. See Kershaw v. Reichert, 445 N.W.2d 16, 17 (N.D.1989); Hillesland v. Federal Land .Bank Ass’n, 407 N.W.2d 206, 208 (N.D.1987); R.B.J. Apartments, Inc. v. Gate City Sav. & Loan Ass’n, 315 N.W.2d 284, 287 (N.D.1982). The Cort test provides:

“In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ ... — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?”

Hillesland, 407 N.W.2d at 208 (quoting Cort, 422 U.S. at 78, 95 S.Ct. 2080).

[¶ 12] Although we have not previously addressed the issue, courts in other jurisdictions have applied the Cort test when determining whether there is an implied private right of action under a state statute. See, e.g., Lock v. Schreppler, 426 A.2d 856, 864 (Del.Super.Ct.1981), superseded by statute on other grounds as stated in Eastern Commercial Realty Corp. v. Fusco, 654 A.2d 833, 837 (Del.1995); Coates v. Elzie, 768 A.2d 997, 1001 (D.C.2001); Sanford v. Manternach, 601 N.W.2d 360, 371 (Iowa 1999); Eason v. Independent Sch. Dist. No. 11, 598 N.W.2d 414, 417 (Minn.Ct.App.1999); Uhr v. East Greenbush Cent. Sch. Dist., 94 N.Y.2d 32, 698 N.Y.S.2d 609, 720 N.E.2d 886, 888 (1999); Holbert v. Echeverria, 744 P.2d 960, 963 (Okla.1987), superseded by statute on other grounds as stated in Walls v. American Tobacco Co., 11 P.3d 626, 628 (Okla.2000); United Steelworkers of America v. Tri State Greyhound Park, 178 W.Va. 729, 364 S.E.2d 257, 259-60 (1987); see also Dahl v. ConAgra, Inc., 998 F.2d 619, 621 (8th Cir. 1993) (predicting this Court would apply Cort factors recognized in R.B.J. Apartments to a state statute). Most states that have adopted the Cort test for determining whether to imply a private right of action under a state statute have deleted the fourth Cort factor, because it does not apply in the state law context. See, e.g., Lock, 426 A.2d at 864; Coates, 768 A.2d at 1001; Eason, 598 N.W.2d at 417; Uhr, 698 N.Y.S.2d 609, 720 N.E.2d at 888; Holbert, 744 P.2d at 963. As the court explained in Lock, 426 A.2d at 864, it is appropriate to “[e]liminate[e] the fourth consideration of the Cart test as inapplicable to the consideration of whether a state statute infers a cause of action, since it arises from the basic principle of federalism which accords deference to the states in those areas customarily regulated by them and is founded on a recognition that Congress would not intend to create by implication a private cause of action which would constitute a new federal right in an area of the law traditionally regulated by the states.”

[¶ 13] We conclude the first three Cart factors provide an appropriate analysis for determining whether to imply a private right of action under a state statute. The theory of implied private actions is basically a matter of statutory construction, and the question whether a statute creates a private right of action is ultimately one of legislative intent. R.B.J. Apartments, 315 N.W.2d at 287. An implied private right of action must be within the statutory scheme to exist. Werlinger v. Champion Healthcare Carp., 1999 ND 173, ¶ 42, 598 N.W.2d 820. The “ultimate issue” is whether the legislature intended to create a particular cause of action, and “unless this [legislative] intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (quoting Northwest Airlines, Inc. v. Transport Workers Union of America, 451 U.S. 77, 94, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)); see also Coates, 768 A.2d at 1001. The United States Supreme Court has recognized “the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose — are ones traditionally relied upon in determining legislative intent.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (citation omitted). Because the first three Cort factors are merely a specialized application of traditional canons of statutory construction, we consider those factors, as enunciated and applied in our prior case-law, when determining whether a private right of action should be implied under a state statute.

C

[¶ 14] The legislature’s silence in failing to expressly provide a private right of action is a strong indication it did not intend such a remedy. See Touche Ross, 442 U.S. at 571, 99 S.Ct. 2479; R.B.J. Apartments, 315 N.W.2d at 289. The party urging an implied right of action therefore bears the burden of proof to establish the legislature intended to create the remedy. Suter v. Artist M., 503 U.S. 347, 363-64, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). Thus, Trade ’N Post must demonstrate, through the language and focus of the statute, the legislative history, or the statutory purpose, that the legislature intended to create a private right of action for damages under N.D.C.C. chs. 51-09 and 51-10. See R.B.J. Apartments, 315 N.W.2d at 287.

1

[¶ 15] Trade ’N Post argues it is within the classes of persons the statutes were intended to protect-competitors of offending businesses. The primary purpose of both the Unfair Discrimination Law and the Unfair Trade Practices Law appears to be protection of the public from the effects of anticompetitive business practices. Competitors of the offending businesses may be secondary beneficiaries under the statutes. As the Court noted in R.B.J. Apartments, 315 N.W.2d at 288:

The fact 'that borrowers may suffer “special injury” by violation of these statutes, however, does not necessarily make them members of a class for whose especial benefit the statute was enacted.... The mere fact that these statutes have been violated ... does not automatically give rise to a private cause of action in R.B.J.’s behalf.

Even if Trade ’N Post is a member of a class for whose benefit the statute was enacted, that is merely one factor in the equation. Trade ’N Post must still establish, upon consideration of all relevant factors, the legislature intended to create a private right of action for damages under N.D.C.C. chs. 51-09 and 51-10.

2

[¶ 16] Trade ’N Post has failed to draw our attention to anything in the language of the statutes or the legislative history that indicates the legislature intended to provide a private right of action for damages for violations of N.D.C.C. chs. 51-09 or 51-10. Rather, the statutory scheme strongly supports the conclusion the legislature did not intend such a remedy.

[¶ 17] When a statute expressly includes a comprehensive regulatory scheme, it is a strong indication the legislature did not intend to provide other remedies:

The structure of these statutes similarly counsels against recognition of an implied right of action in this case. The language of the statutes entrusts enforcement of the statutory requirements to the appropriate [regulatory] agencies .... The comprehensive character of a remedial scheme expressly fashioned by [the legislature] strongly evidences an intent not to authorize other remedies. It is not within the competence of the judiciary to amend these comprehensive enforcement schemes by adding to them another private remedy not authorized nor intended by [the legislature].

R.B.J. Apartments, 315 N.W.2d at 288-89 (citation omitted); see also Dahl, 998 F.2d at 622 (“the implication of a private right of action ... where the legislature has provided a comprehensive regulatory scheme and has not explicitly provided such an action, would be an intrusion on the [Public Service Commission’s] regulatory authority”).

[¶ 18] Both the Unfair1 Discrimination Law and the Unfair Trade Practices Law include comprehensive regulatory schemes and give the attorney general broad investigatory and enforcement powers over violations of the statutes. See N.D.C.C. §§ 51-09-04, 51-09-05, 51-09-06, 51-10-05.1, 51-10-05.2, 51-10-05.3, 51-10-06. The attorney general may investigate complaints under the statutes, issue subpoenas, examine or impound records, documents, and merchandise, and commence actions for injunctive relief or to revoke the charter, permit, or license of the violator. In addition, violation of either chapter is a criminal offense. See N.D.C.C. §§ 51-09-02, 51-10-05.

[¶ 19] These are not statutes that create rights without providing an enforcement mechanism. Rather, the legislature has expressly provided extensive civil and criminal remedies for violations of the statutes, and aggrieved parties may file complaints with the attorney general or the secretary of state to trigger an investigation. See N.D.C.C. §§ 51-09-04, 51-09-06. The legislature has provided specific methods for aggrieved parties to participate in enforcement of violations of N.D.C.C. chs. 51-09 and 51-10.

3

[¶ 20] One additional provision in the Unfair Trade Practices Law militates strongly against an implied right of action for damages. Section 51-10-06, N.D.C.C., expressly provides for a private right of action for injunctive relief:

Any person damaged, or who is threatened with loss or injury, by reason of a violation of the provisions of this chapter, is entitled to sue for and have in-junctive relief in the district court against any damage or threatened loss or injury by reason of a violation hereof.

Under similar circumstances, the court in Massachusetts Candy & Tobacco Distrib., Inc. v. Golden Distrib., Ltd., 852 F.Supp. 63, 70 (D.Mass.1994), stated:

[I]t is unlikely that plaintiffs may sue for damages for defendant’s alleged violation of either the Unfair Sales Act or the Cigarette Act. Certainly, there is no express right of action to sue for damages. Nor can it be said that such right arises by clear implication of either statute. In fact, the clearest implication is that there is no such right. The Unfair Sales Act expressly provides for the right to sue for injunctive relief only.... Where a statute expressly provides for a private right of action that does not include a damages remedy, it is difficult to draw any conclusion other than that the limited remedy provided by the legislature is the only one it intended to create.

By creating a private right of action for injunctive relief, but not for damages, the legislature has clearly expressed its intent not to create a private remedy for damages. In construing statutes, this Court has recognized the maxim expressio unius est exclusio alterius: “[T]he mention of one thing implies the exclusion of another.” Dixon v. Kaufman, 79 N.D. 633, 643, 58 N.W.2d 797, 803 (1953).

4

[¶ 21] Further support for our conclusion arises from a review of N.D.C.C. chs. 51-09 and 51-10 within the context of the entire statutory scheme. See Dahl, 998 F.2d at 622 (“a particular section is best construed in light of, with reference to, or in connection with an entire statutory scheme”). Statutes should be read in relation to other statutes involving the same or similar subject matter in an attempt to discern legislative intent. Johnson v. Johnson, 527 N.W.2d 663, 668 (N.D.1995); Kroh v. American Family Ins., 487 N.W.2d 306, 308 (N.D.1992).

[¶ 22] The chapter in the Century Code immediately preceding the Unfair Discrimination Law and the Unfair Trade Practices Law is N.D.C.C. ch. 51-08.1, the Uniform State Antitrust Act. The provisions of the Antitrust Act are in many respects similar to, and overlap, the Unfair Discrimination Law and the Unfair Trade Practices Law. See N.D.C.C. §§ 51-08.1-02, 51-08.1-03. In fact, the same conduct by Ammex that Trade ’N Post relies upon as the basis of its claims under the Unfair Discrimination Law and the Unfair Trade Practices Law also provides the basis for Trade ’N Post’s claims in its action under the Antitrust Act.

[¶ 23] The Antitrust Act explicitly provides a private right of action for in-junctive relief and damages, including costs, attorney fees, and treble damages. N.D.C.C. § 51-08.1-08(2). We believe it is significant the legislature has, in consecutive chapters dealing with related subject matter, expressly provided a cause of action for injunctive relief and damages under the Antitrust Act, expressly provided an action for injunctive relief but not damages under the Unfair Trade Practices Law, and provided no private right of action under the Unfair Discrimination Law. The express inclusion of a private right of action for damages in the Antitrust Act indicates the legislature knew how to create such a remedy if that was its intent. See State ex rel. Kusler v. Sinner, 491 N.W.2d 382, 388 (N.D.1992); Mid-America Steel, Inc. v. Bjone, 414 N.W.2d 591, 596 (N.D.1987); Hennum v. City of Medina, 402 N.W.2d 327, 332 n. 3 (N.D.1987). When a statute that fails to expressly provide a private right of action is flanked by a related statute that does expressly create such a remedy, it is an indication the legislature did not intend to create a private right of action by implication. See Touche Ross, 442 U.S. at 571-72, 99 S.Ct. 2479; Dahl, 998 F.2d at 622.

5

[¶ 24] Trade ’N Post has also failed to provide authority from other jurisdictions that would support an implied right of action under these circumstances. The parties have cited statutes from numerous other jurisdictions that are similar to the Unfair Discrimination Law and the Unfair Trade Practices Act. Trade ’N Post has not cited a single decision finding an implied private right of action under those similar statutes.

6

[¶ 25] Trade ’N Post argues we should recognize a private right of action under the Unfair Discrimination Law and the Unfair Trade Practices Law based upon the holding in Fargo Women’s Health Org., Inc. v. FM Women’s Help and Caring Connection, 444 N.W.2d 683 (N.D.1989). Trade ’N Post contends the Court in Fargo Women’s Health recognized an implied private right of action under the False Advertising Act, N.D.C.C. ch. 51-12.

[¶ 26] Careful reading of Fargo Women’s Health, however, yields two possible interpretations: the Court found an implied private right of action under the statute, or the Court recognized a common law tort and concluded a violation of the statute could establish the elements of that tort. The Court did not focus upon the legislature’s express or implied intent to create an action for damages under the statute, but instead stressed “the role of the judiciary in the expression of law” and that “ ‘[t]ort law is overwhelmingly common law, developed in case-by-case deci-sionmaking by courts.’ ” Fargo Women’s Health, 444 N.W.2d at 684 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 3, at 19 (5th ed.1984)). Fargo Women’s Health does not support implying a private right of action for damages in this case.

[¶ 27] The majority opinion in Fargo Women’s Health is hardly a model of clarity, and on its face lends itself to differing interpretations: that the Court was creating a common-law tort for damages for false advertising, or that it was implying a private right of action under the statute.

[¶ 28] The majority in Fargo Women’s Health never used the phrase “implied private right of action.” Nor did the majority cite a single decision addressing the well-developed doctrine of implied private rights of action. The majority never acknowledged prior caselaw establishing the decision whether to find an implied private right of action under a statute is a matter of statutory construction, hinging upon legislative intent. See R.B.J. Apartments, 315 N.W.2d at 287; see also Werlinger, 1999 ND 173, ¶ 42, 598 N.W.2d 820.

[¶ 29] The Fargo Women’s Health majority’s reasoning is addressed entirely to the Court’s authority to create the common law. In addition to beginning its analysis with the observation “[t]ort law is overwhelmingly common law, developed in case-by-case decisionmaking by courts,” the majority next stressed “violation of a statute or ordinance may be considered as evidence of negligence.” Fargo Women’s Health, 444 N.W.2d at 685 (quoting Keyes v. Amundson, 391 N.W.2d 602, 608 (N.D.1986)).

[¶ 30] In concluding an action for damages was an appropriate remedy, the majority relied upon its determination there were strong public policy reasons favoring such a remedy. See Fargo Women’s Health, 444 N.W.2d at 685. Consideration of public policy is appropriate only if the Court is determining whether to create a separate, common-law tort. If it is merely deciding whether an implied private right of action exists under the statute, it may only consider whether the legislature intended such a remedy, not whether in the Court’s view a particular result is better from a policy standpoint. See Werlinger, 1999 ND 173, ¶ 42, 598 N.W.2d 820; R.B.J. Apartments, 315 N.W.2d at 287, 289. To the extent that Fargo Women’s Health held an implied private right of action under the statute, it is overturned.

D

[¶ 31] In reaching the conclusion there is no implied private right of action for damages under the Unfair Discrimination Law or the Unfair Trade Practices Law, we recognize the limitations placed upon courts by the separation-of-powers doctrine:

In implying a private cause of action, the court must be cognizant of the separation-of-powers doctrine. Our constitutional obligations prevent us from providing a cause of action significantly broader than the remedy [the legislature] intended to provide. The implication of a private right of action on the basis of [legislative] silence in this instance would, at best, be an unwarranted intrusion upon the legislative domain.

R.B.J. Apartments, 815 N.W.2d at 289. The question for this Court is not whether we believe an action for damages for violation of the statute is appropriate. We “will not engraft a remedy on a statute, no matter how salutary, that [the legislature] did not intend to provide.” Thompson, 484 U.S. at 187, 108 S.Ct. 513 (quoting California v. Sierra Club, 451 U.S. 287, 297, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)). The sole question for this Court is whether the legislature intended to provide such a remedy. Trade ’N Post has failed to meet its burden of proving the legislature’s intent to create a damages remedy, and we therefore conclude there is no implied private right of action for damages under N.D.C.C. chs. 51-09 or 51-10.

Ill

[¶ 32] Trade ’N Post asks this Court to recognize the common law tort of unlawful interference with business under the facts alleged in its complaint-that Ammex allegedly “pressured” suppliers and tour bus operators to refuse to do business with Trade ’N Post. The nature of the “pressure” is not specified. We recognize the existence of the common law tort claim for unlawful interference with business and attempt to define its parameters within the context of this case.

A

[¶ 33] We have previously recognized the closely related cause of action for tor-tious interference with an existing contract. See, e.g., Messiha v. State, 1998 ND 149, ¶ 10, 583 N.W.2d 385; Tracy v. Central Cass Pub. Sch. Dist., 1998 ND 12, ¶ 9, 574 N.W.2d 781; Fronteer Directory Co. v. Maley, 1997 ND 162, ¶ 14, 567 N.W.2d 826. In Bekken v. Equitable Life Assur. Soc., 70 N.D. 122, 153, 293 N.W. 200, 217 (1940), this Court explained:

Wrongful interference with contractual rights, whether such interference induces or prevents a third person to refrain from forming a contract, or induces such person to break an existing contract, will render the person whose wrongful conduct is responsible for these results liable in damages to the party injured.

[¶ 34] Trade ’N Post concedes this Court has never expressly recognized the validity of a common law unlawful interference with business claim in this state, although we have discussed the tort on prior occasions. In Fox v. Higgins, 149 N.W.2d 369 (N.D.1967), the Court concluded the plaintiff had failed to plead and prove the elements of the tort:

Our decision does not, as contended by the plaintiff, mean that no right of action exists in this State for interference with business or trade. All that we do hold is that the pleading of the plaintiff and the evidence which he produced in this case do not constitute or prove such a tort.

Id. at 372 (On Petition for Rehearing). Similarly, in Schneider v. Schaaf 1999 ND 235, ¶¶ 25-28, 603 N.W.2d 869, we held, without expressly deciding the validity of the tort in this state, that the plaintiffs had failed to present any evidence of actual damages and therefore summary judgment dismissal of the claim was appropriate. The possible existence of the common law tort of wrongful interference with business was also recognized in a concurring opinion in Fargo Women’s Health Org., Inc. v. FM Women’s Help and Caring Connec tion, 444 N.W.2d 683, 687-88 (N.D.1989) (VandeWalle, J., concurring in result).

B

[¶ 35] Wrongful interference with business is a recognized tort in nearly all American jurisdictions. See James O. Pearson, Jr., Annotation, Liability For Interference With At Will Business Relationship, 5 A.L.R.4th 9, § 2[a] (1981), and cases cited therein. We today join those jurisdictions, and recognize the existence of a tort action for unlawful interference with business in this State.

[¶ 36] There is great disparity in the language used by courts to describe the various elements of the tort. See, e.g., McGreevy v. Daktronics, Inc., 156 F.3d 837, 841 (8th Cir.1998); Pettit v. Paxton, 255 Neb. 279, 583 N.W.2d 604, 609 (1998); Landstrom v. Shaver, 561 N.W.2d 1, 16 (S.D.1997); 45 Am.Jur.2d Interference § 48 (1999). We hold that, in order to prevail on a claim for unlawful interference with business, a plaintiff must prove the following essential elements: (1) the existence of a valid business relationship or expectancy; (2) knowledge by the interferer of the relationship or expectancy; (3) an independently tortious or otherwise unlawful act of interference by the interferer; (4) proof that the interference caused the harm sustained; and (5) actual damages to the party whose relationship or expectancy was disrupted. See, e.g., Wal-Mart Stores, Inc. v. Sturges, 44 Tex.Sup.Ct.J. 486, No. 98-1107, 2001 WL 228139, at *1 (Tex. Mar.8, 2001); see also Schneider, 1999 ND 235, ¶ 26, 603 N.W.2d 869 (actual damages are an essential element of the tort).

C

[¶ 37] In setting the parameters for the tort in this State, we recognize the wide divergence of opinions in other jurisdictions over the precise nature of “wrongful” conduct which will give rise to the tort. For example, in Texas alone, the courts have used a virtual laundry list of terms to describe the wrongful conduct which will give rise to the tort:

Texas, like most states, has long recognized a tort cause of action for interference with a prospective contractual or business relation even though the core concept of liability — what conduct is prohibited — has never been clearly defined. Texas courts have variously stated that a defendant may be liable for conduct that is “wrongful”, “malicious”, “improper”, of “no useful purpose”, “below the behavior of fair men similarly situated”, or done “with the purpose of harming the plaintiff’, but not for conduct that is “competitive”, “privileged”, or “justified”, even if intended to harm the plaintiff. Repetition of these abstractions in the case law has not imbued them with content or made them more useful, and tensions among them, which exist not only in Texas law but American law generally, have for decades been the subject of considerable critical commentary.

Wal-Mart, 2001 WL 228139, at *1.

[¶ 38] Much of the debate in recent years has focused upon the necessity of establishing malice or ill will by the interferer, and upon whether the action complained of was justified or privileged. These conflicts have been created to a great degree by the close historical ties between the tort of interference with an existing contract and the tort of interference with prospective business advantage. For a thorough discussion of the historical underpinnings of these disputes, see Wal-Mart, 2001 WL 228139, at *4-5; Bella Penna v. Toyota Motor Sales, U.S.A, Inc., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 902 P.2d 740, 743-747 (1995); Dan B. Dobbs, Tortious Interference with Contractual Relationships, 34 Ark.L.Rev. 335, 338-44 (1980); Donald C. Dowling, Jr., A Contract Theory for a Complex Tort: Limiting Interference with Contract Beyond the Unlawful Means Test, 35 Def. L.J. 503, 510-19 (1986); and Harvey S. Perlman, Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U.ChLL.Rev. 61, 63-69 (1982).

[¶ 39] Particularly in the context of actions for wrongful interference with business brought against a competitor of the plaintiff, many courts and commentators have urged a decoupling of the two torts and, for wrongful interference with business, have suggested malice or motive of the interferer is irrelevant and liability should only be imposed if the interferer’s conduct is independently tortious or unlawful. See, e.g., Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 867 (7th Cir. 1999); Della Penna, 45 Cal.Rptr.2d 436, 902 P.2d at 750-51; The Vikings, USA Bootheel MO v. Modern Day Veterans, 33 S.W.3d 709, 711 (Mo.Ct.App.2000); Wal-Mart, 2001 WL 228139, at *8-12; Dobbs, supra, 34 Ark.L.Rev. at 347-50; Gary Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, 77 Minn.L.Rev. 1097, 1142-43 (1993); Perlman, supra, 49 U.Chi.L.Rev. at 78-99.

[¶ 40] The Supreme Court of California has provided a cogent analysis of the competing concerns:

In searching for a means to recast the elements of the economic relations tort and allocate the associated burdens of proof, we are guided by an overmastering concern articulated by high courts of other jurisdictions and legal commentators: The need to draw and enforce a sharpened distinction between claims for the tortious disruption of an existing contract and claims that a prospective contractual or economic relationship has been interfered with by the defendant. Many of the cases do in fact acknowledge a greater array of justificatory defenses against claims of interference with prospective relations. Still, in our view and that of several other courts and commentators, the notion that the two torts are analytically unitary and derive from a common principle sacrifices practical wisdom to theoretical insight, promoting the idea that the interests invaded are of nearly equal dignity. They are not.
The courts provide a damage remedy against third party conduct intended to disrupt an existing contract precisely because the exchange of promises resulting in such a formally cemented economic relationship is deemed worthy of protection from interference by a stranger to the agreement. Economic relationships short of contractual, however, should stand on a different legal footing as far as the potential for tort liability is reckoned. Because ours is a culture firmly wedded to the social rewards of commercial contests, the law usually takes care to draw lines of legal liability in a way that maximizes areas of competition free of legal penalties.
A doctrine that blurs the analytical line between interference with an existing business contract and interference with commercial relations less than contractual is one that invites both uncertainty in conduct and unpredictability of its legal effect. The notion that inducing the breach of an existing contract is simply a subevent of the “more inclusive” class of acts that interfere with economic relations, while perhaps theoretically unobjectionable, has been mischievous as a practical matter. Our courts should, in short, firmly distinguish the two kinds of business contexts, bringing a greater solicitude to those relationships that have ripened into agreements, while recognizing that relationships short of that subsist in a zone where the rewards and risks of competition are dominant.
Beyond that, we need not tread today. It is sufficient to dispose of the issue before us in this case by holding that a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant’s interference was wrongful “by some measure beyond the fact of the interference itself.”

Della Penna, 902 P.2d 750-51 (quoting Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365, 1371 (1978)).

[¶ 41] Professor Myers has further expounded upon the rationale for abandoning malice and motive in favor of focusing upon the unlawful nature of the interferer’s conduct:

With regard to tortious interference with prospective business relations ... the law already recognizes a right to compete for future business. The inquiry into motive, however, should be eliminated whenever the defendant is a bona fide competitor of the plaintiff. In such cases, although the defendant may have made a vindictive statement showing mixed motives, the defendant’s right to compete vigorously should preclude a tort claim. In every case, it would seem, a competitor would be motivated at least in part by economic self-interest when it interferes with a prospective business relationship. As one court has observed, “A competitor has an absolute right to take away as much of the ‘other fellow’s’ business as he can lawfully.”

Myers, supra, 77 Minn.L.Rev. at 1142 (footnotes omitted) (quoting C.R. Bard, Inc. v. Wordtronics Corp., 235 N.J.Super. 168, 561 A.2d 694, 697 (1989)). Professor Myers concludes:

[Although one who interferes with the stability of a contractual relationship may be seen as an interloper and possibly a tortfeasor, one who interferes merely with a “prospective business advantage” may be essentially a competitor. In an economic system founded upon the principle of free competition, competitors should not be liable in tort for seeking a legitimate business advantage.

Myers, supra, 77 Minn.L.Rev. at 1121-22 (footnote omitted); see also Wal-Mart, 2001 WL 228139, at *4.

[¶42] In the context of this case, involving a claim of interference by a business competitor, we agree with the growing body of cases which hold that, in order to recover for wrongful interference with business, the plaintiff must prove the defendant’s conduct was independently tor-tious or otherwise unlawful. See, e.g., Speakers of Sport, 178 F.3d at 867; Della Penna, 45 Cal.Rptr.2d 436, 902 P.2d at 751; Levee v. Beeching, 729 N.E.2d 215, 222 (Ind.Ct.App.2000); McGeechan v. Sherwood, 760 A.2d 1068, 1081 (Me.2000) (claimant must show either intimidation or fraud); Berry & Gould, P.A. v. Berry, 360 Md. 142, 757 A.2d 108, 113 (2000); The Vikings, 33 S.W.3d at 711. We agree with the well-reasoned conclusion of the Supreme Court of Texas:

It appears that in most Texas eases in which plaintiffs have actually recovered damages for tortious interference with prospective business relations, the defendants’ conduct was either independently tortious — in the four cases noted, defamatory or fraudulent — or in violation of state law. For the same reasons accepted by the Supreme Court of California in Della Penna, and by the Seventh Circuit in Speakers of Sport, and advanced by Professor Perlman and other legal commentators, we see no need for a definition of tortious interference with prospective business relations that would encompass other conduct. The historical limitation of the tort to unlawful conduct — “the actor’s conduct was characterized by violence, fraud or defamation, and was tortious in character”— provides a viable definition and preserves the tort’s utility of filling a gap in affording compensation in situations where a wrong has been done. The concepts of malice, justification, and privilege have not only proved to be overlapping and confusing, they provide no meaningful description of culpable conduct, as the Restatement (Second) of Torts concluded more than twenty years ago.
We therefore hold that to recover for tortious interference with a prospective business relation a plaintiff must prove that the defendant’s conduct was independently tortious or wrongful. By independently tortious we do not mean that the plaintiff must be able to prove an independent tort. Rather, we mean only that the plaintiff must prove that the defendant’s conduct would be actionable under a recognized tort. Thus, for example, a plaintiff may recover for tor-tious interference from a defendant who makes fraudulent statements about the plaintiff to a third person without proving that the third person was actually defrauded. If, on the other hand, the defendant’s statements are not intended to deceive, as in Speakers of Sport, then they are not actionable. Likewise, a plaintiff may recover for tortious interference from a defendant who threatens a person with physical harm if he does business with the plaintiff. The plaintiff need prove only that the defendant’s conduct toward the prospective customer would constitute assault. Also, a plaintiff could recover for tortious interference by showing an illegal boycott, although a plaintiff could not recover against a defendant whose pei-suasion of others not to deal with the plaintiff was lawful. Conduct that is merely “sharp” or unfair is not actionable and cannot be the basis for an action for tortious interference with prospective relations, and we disapprove of cases that suggest the contrary. These examples are not exhaustive, but they illustrate what conduct can constitute tortious interference with prospective relations.
The concepts of justification and privilege are subsumed in the plaintiffs proof, except insofar as they may be defenses to the wrongfulness of the alleged conduct. For example, a statement made against the plaintiff, though defamatory, may be protected by a complete or qualified privilege. Justification and privilege are defenses in a claim for tortious interference with prospective relations only to the extent that they are defenses to the independent tortiousness of the defendant’s conduct. Otherwise, the plaintiff need not prove that the defendant’s conduct was not justified or privileged, nor can a defendant assert such defenses.
In reaching this conclusion we treat tortious interference with prospective business relations differently than tor-tious interference with contract. It makes sense to require a defendant who induces a breach of contract to show some justification or privilege for depriving another of benefits to which the agreement entitled him. But when two parties are competing for interests to which neither is entitled, then neither can be said to be more justified or privileged in his pursuit. If the conduct of each is lawful, neither should be heard to complain that mere unfairness is actionable.

Wal-Mart, 2001 WL 228139, at *11-12 (footnotes omitted) (quoting Restatement (Second) of Torts § 766B cmt. b (1979)). The Texas court summarized its holding:

[W]e conclude that to establish liability for interference with a prospective contractual or business relation the plaintiff must prove that it was harmed by the defendant’s conduct that was either independently tortious or unlawful. By “independently tortious” we mean conduct that would violate some other recognized tort duty.... [B]y way of example, a defendant who threatened a customer with bodily harm if he did business with the plaintiff would be ha-ble for interference because his conduct toward the customer — assault—was independently tortious, while a defendant who competed legally for the customer’s business would not be liable for interference. Thus defined, an action for interference with a prospective contractual or business relation provides a remedy for injurious conduct that other tort actions might not reach (in the example above, the plaintiff could not sue for assault), but only for conduct that is already recognized to be wrongful under the common law or by statute.

Wal-Mart, 2001 WL 228139, at *1.

[¶ 43] We hold that, in order to recover in tort for unlawful interference with business for actions by a business competitor, the plaintiff must establish that the interfering conduct was independently tortious or otherwise in violation of state law.

D

[¶ 44] The basis for Trade ’N Post’s unlawful interference with business claim is the allegation Ammex pressured suppliers and tour bus operators to refuse to do business with Trade ’N Post. On the record in this case, we have been provided no details on the specific conduct and tactics employed by Ammex. Accordingly, we leave it to the federal district court to resolve the factual disputes and determine whether Ammex’s conduct provides a basis for tort liability under the parameters set out in this opinion.

IV

[¶ 45] We conclude there is no private right of action for damages under either the Unfair Discrimination Law or the Unfair Trade Practices Law, and we recognize a common law tort claim for unlawful interference with business.

[¶ 46] VANDE WALLE, C.J., and RUSTAD, D.J., NEUMANN and MARING, JJ.,

[¶ 47] GERALD H. RUSTAD, D.J., sitting in place of KAPSNER, J., disqualified.


source: Caselaw Access Project

author: MILLER, Chief Justice.

license: Public Domain

text:
    2001 SD 64
    Stacy METTLER, Claimant and Appellee, v. SIBCO, INC. (Snelling Personnel and Western Temporary Services) and Cigna Insurance Companies, Employer, Insurer and Appellant.
    No. 21648.
    Supreme Court of South Dakota.
    Considered on Briefs on April 24, 2001.
    Decided May 23, 2001.
    Kenneth L. Chleborad of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter Rapid City, SD, Attorneys for claimant and appellee.
    Craig A. Pfeifle of Lynn, Jackson, Shultz and Lebrun Rapid City, SD, Attorneys for employer, insurer and appellant.
   MILLER, Chief Justice.

[¶ 1.] In this workers’ compensation appeal, we hold that under these facts employee’s gynecological medical expenses incurred in the course of diagnosing her pain are compensable.

FACTS

[¶2.] Stacy Mettler worked for Sibco, Inc. When she arrived at work on December 15,1993, the parking lot designated for her use was icy. She fell while traversing the ice and landed on her posterior. She immediately informed her supervisor. Mettler noted that a bruise developed. She continued to work but alleges that her pain increased over time.

[¶ 3.] Mettler sought medical attention in early 1994 because she had persistent pelvic pain and backache. Due to the type of pain complaints, coupled with Mettler’s female gender, several medical providers suspected the cause of her pain could be gynecological. The medical providers conducted gynecological tests and did find and treat mild endometriosis, but Mettler’s pain continued.

[¶4.] She continued to see different medical providers due to her continuing inexplicable pain. Eventually, she was diagnosed with sacroiliac joint dysfunction caused by the fall. She informed Sibco of this diagnosis even though it had terminated her in February 1994.

[¶ 5.] Mettler underwent sacroiliac joint surgery in August 1994 and again in August 1995 with minimal success. She then attended a pain clinic. At the pain clinic, Mettler completed a functional capacities evaluation (FCE) that indicated she could perform part-time sedentary work. Two of Sibco’s witnesses, however, indicated that part-time sedentary work would cause Mettler pain. The pain clinic also determined that Mettler suffered from many life stresses causing her further difficulty in tolerating her pain. Sibco’s own psychologist found that Mettler’s fall and resultant pain had exacerbated her preexisting depression and that she would be incapable of returning to full-time gainful employment.

[¶ 6.] Mettler’s case came before the Department in May of 1997. Upon appeal by Sibco, the circuit court remanded the case for further consideration of the disputed medical expenses and the temporary total disability benefits. The Department ultimately decided Mettler was entitled to temporary total disability benefits and ordered Sibco to pay certain disputed medical bills. Sibco appealed again and the circuit court: (1) affirmed the DOL’s finding that Mettler was permanently disabled; (2) affirmed the DOL’s that order required Sibco to pay certain disputed medical expenses, and further ordered Sib-co to pay all remaining disputed medical expenses; and, (3) affirmed the DOL’s award of temporary total disability benefits to Mettler. Sibco appeals the circuit court’s decision. We affirm.

STANDARD OF REVIEW

[¶ 7.] We give great weight to a department’s findings of fact. SDCL 1-26-36. We review the findings of fact in the same manner as the circuit court. Johnson v. Albertson’s, 2000 SD 47, ¶ 19, 610 N.W.2d 449, 453 (citations omitted). The purpose of our review is to determine if the department’s findings of fact are clearly erroneous in light of all the evidence, which means we will reverse only if we are definitely and firmly convinced a mistake has been made. Id. (citations omitted). Determining if a claimant “ ‘belongs in the odd lot total disability category is a question of fact’ ” Lends His Horse v. Myrl & Roy’s Paving, Inc., 2000 SD 146, ¶ 9, 619 N.W.2d 516, 519. We do not substitute our judgment for the Department’s on the weight of the evidence or the credibility of witnesses. Id. ¶ ¶ 9, 15. Questions of law are reviewed de novo. Johnson, 2000 SD 47, ¶ 19, 610 N.W.2d at 453.

DECISION

[¶ 8.] Mettler’s medical expenses incurred in the course of diagnosing the cause of her pain are compensable.

[¶ 9.] This is a unique issue presented to us for the first time. Sibco denies liability for gynecological testing done in the course of diagnosing the cause of Mettler’s pain. As the pain clinic's psychiatrist, Dr. Cho, observed:

[I]t is reasonable and necessary because we need to sort it out what is the real problem. She was having pain in the right gluteal area. And because of female and that age often we do see a patient with a back pain, vague back pain, nothing to do from the back, but it’s more female organ problems. So in her case I think those type of evaluation is required and necessary.

We are persuaded by the following authority:

Whenever the purpose of the diagnostic test is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compen-sable, even if it should later be determined that the claimant suffered from both compensable and noncompensable conditions.

Perry v. Ridgecrest Intern., 548 So.2d 826, 827-28 (Fla.App.1989) (citations omitted). Furthermore, we have previously acknowledged that there may be instances where nonwork related diseases are nonetheless covered under workers’ compensation insurance such as, “ ‘where the treatment for nonwork related disease would be unnecessary but for the work related injury.’ ” Rank v. Lindblom, 459 N.W.2d 247, 250-51 (S.D.1990). This is just such an instance.

[¶ 10.] The record reflects that the bills for which Sibco denies liability were explicitly performed for diagnostic purposes. While it is true the diagnostic surgery discovered mild endometriosis, which was treated during the surgery, Mettler’s pain continued and the medical providers doubted Mettler’s pain related to the mild endometriosis. The medical evidence clearly indicates these procedures were reasonable and necessary in progressing toward Mettler’s ultimate diagnosis of sacroiliac joint dysfunction. Accordingly, we affirm the circuit court’s decision to find all these disputed medical expenses compen-sable.

[¶ 11.] Sibco also asserts that Department erred in finding that Mettler was entitled to temporary disability benefits, in finding that Mettler is permanently disabled, and in denying its petition for review. We have considered all of these issues under the appropriate standard of review and find them totally lacking in merit.

[¶ 12.] Affirmed.

[¶ 13.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . Endometriosis is "a condition in which tissue more or less perfectly resembling the uterine mucous membrane (the endometrium) occurs aberrantly in various locations in the pelvic cavity.” Dorland’s Illustrated Medical Dictionary 518 (25th ed., W.B. Saunders Co. 1974).


author: AMUNDSON, Justice. SABERS, Justice

text:
    2001 SD 70
    Robert SCHNEIDER, Claimant and Appellee, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, Employer and Appellant.
    No. 21412.
    Supreme Court of South Dakota.
    Considered On Briefs Oct. 24, 2000.
    Reassigned Jan. 3, 2001.
    Decided May 30, 2001.

      Alicia D. Garcia and Michael Abourezk of Abourezk Law Firm, Rapid City, SD, Attorneys for claimant and appellee.
    Robert B. Anderson of May, Adam, Gerdes and Thompson, Pierre, SD, Attorneys for employer and appellant.
   AMUNDSON, Justice.

[¶ 1.] Robert Schneider (Schneider) suffered an injury to his back while chopping wood at his home on November 11, 1993. On January 27, 1994 Schneider was operating a snowplow when he reported a sudden onset of pain in his back. He has not worked since. The Department of Labor (Department) found that Schneider was not entitled to workers’ compensation benefits. The circuit court reversed. On remand, the Department determined that Schneider was entitled to total disability benefits. The circuit court affirmed. We reverse.

FACTS

[¶ 2.] Schneider was employed by the Department of Transportation (DOT) from 1988 until January 1994 as a highway maintenance worker. On November 11, 1993, Schneider injured his back while home chopping wood during his holiday vacation. As a result, Schneider saw physical therapist Kelly Coleman on December 14, 1993. Schneider “complained of back and left hip and radicular leg pain.” Schneider revisited Coleman five additional times for physical therapy treatments prior to January 27,1994.

[¶ 3.] The purpose of the physical therapy was to decrease the pressure on the nerve rootlets by shifting the bulging disk. Coleman noted some improvement after the first visit and after additional visits. Schneider worked sporadically since the wood-chopping incident. He worked the entire week of November 13-19, took leave November 22 and 23, plowed snow November 24 for 3.5 hours then used sick leave for the rest of the day, he did not work at all the week of January 3 through 7 and January 10 to 14. Coleman stated that Schneider’s problems were not cured or eliminated and “once you have a bulge and have a weakness like that, it never does return to a normal state.” This is confirmed by the fact that after returning to work on January 18 he used four hours of leave January 19 because of back pain and missed all of January 21 because of back and leg pain.

[¶ 4.] On January 27, 1994, while driving a snowplow Schneider testified that “I had hit a snowdrift, or something of that nature, and I felt a sharp pain.” Schneider called his supervisor and told him that driving the plow was hurting his back and he could not continue. Despite his claim that he was hurt, he completed his route and returned to the DOT garage. He has not worked since.

[¶ 5.] On February 4, 1994, Schneider sought medical care for his back and leg problems at the Veteran’s Administration Hospital in Fort Meade, South Dakota. He briefly discussed his medical history with Nurse Hickenbotham and advised her that he suffered severe pain in his back and leg and related it to the wood-chopping incident. No mention was made of the events of January 27, 1994 with the snowplow.

[¶ 6.] Dr. Larry Teuber eventually diagnosed and performed surgery on Schneider to remedy a free-floating fragment in his back. In relaying his medical history to Dr. Teuber, Schneider stated he was injured while driving sometime in December 1993 and January 1994. Contrary to what he had told Nurse Hickenbotham, he also told Dr. Teuber “at no time in the past has he had left leg pain.” The wood-chopping incident was never mentioned.

[¶ 7.] Schneider then visited Dr. Steven Goff for the purposes of impairment rating on March 23, 1995. Schneider specifically attributed the source of his injury to the January 27, 1994 incident driving the snowplow for the DOT. Consistent with what he told Dr. Teuber, but inconsistent with what he told Nurse Hickenbotham, Schneider failed to attribute any of his pain to the 1993 wood-chopping incident.

[¶ 8.] Following surgery, Schneider continued to experience substantial pain in his back and sought workers’ compensation benefits. The Department denied benefits finding that:

1. Claimant’s credibility is questionable and suspect because of information he either supplied or failed to supply-
2. Claimant’s complaints of pain and physical disability were the same prior to January 27, 1994, as thereafter.
3. Immediately after the alleged incident of January 27, 1994, Claimant continued to relate his physical problems to the ‘wood-splitting’ incident.
4. At some later date, Claimant began to relate all of his problems to the alleged incident of January 27, 1994, and omitted all reference to the wood-splitting incident.
5. Claimant has had continuous back and leg problems dating from the wood-splitting incident of November 11,1993.
6. Claimant’s hearing testimony that he is a poor historian of facts and simply failed to be articulate and complete lacks merit and credibility.
7. Based on Claimant’s suspect testimony, conflicting evidence, and his lack of credibility in general, Claimant’s testimony is rejected concerning his alleged injury which occurred while driving a snowplow.
8. Without an accurate knowledge of Claimant’s back injury of November 11, 1993, and condition thereafter, Dr. Teuber admitted that he could not be sure whether Claimant suffered from an aggravation or a recurrence of that back injury.... The testimony of Dr. Teuber as it relates to [the snow plow incident] is also rejected, since it is lacking any credible basis.
9. Coleman’s opinion was based in part on Claimant’s self reported complaints and history. Since Claimant’s testimony concerning the events of his alleged injury have been rejected, Coleman’s opinion relating to Claimant’s condition ... must be rejected. Coleman did not state to a reasonable degree of medical certainty that Claimant’s condition was connected to the alleged incident of January 27, 1994. Coleman only testified that there was a probability ... and that testimony was based on incomplete and inaccurate information.
10.Claimant has failed to establish by a preponderance of the evidence that he suffered an injury arising out of and in the course of employment with the DOT.

[¶ 9.] The circuit court reversed the Department’s decision finding that a work related injury did not occur and that the Department’s findings were not supported by substantial evidence or were clearly erroneous. The circuit court found that Schneider established that an aggravation of an old injury occurred, and remanded to the Department for an award of benefits.

STANDARD OF REVIEW

[¶ 10.] We will overrule the Department’s findings of fact only if they are clearly erroneous in light of the entire record. Kurtz v. SCI, 1998 SD 37, ¶ 9, 576 N.W.2d 878, 882. “The test is whether after reviewing the evidence we are left with a definite and firm conviction that a mistake .has been made.” Truck Ins. Exch. v. Kubal, 1997 SD 37 ¶ 9, 561 N.W.2d 674, 676 (citations omitted). Whereas, conclusions of law are given no deference and are freely reviewable. Kurtz, 1998 SD 37, ¶ 9, 576 N.W.2d at 882.

[¶ 11.] We review the Department’s decision unaided by any presumption that the circuit court’s decision was correct. Id. “Issues of causation in workers’ compensation cases are factual issues that are best determined by the Department.” Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 8, 545 N.W.2d 834, 836. “Due regard shall be given to the opportunity of the agency to judge the credibility of the witness.” Bonnett v. Custer Lumber Corp., 528 N.W.2d 393, 396 (S.D.1995).

[¶ 12.] 1. WHETHER THE CIRCUIT COURT ERRED IN REVERSING THE INITIAL DECISION BY THE DEPARTMENT OF LABOR THAT SCHNEIDER DID NOT SUFFER AN INJURY IN THE COURSE OF HIS EMPLOYMENT WITH DOT.

[¶ 13.] “The burden of proof is on [Schneider] to show by a preponderance of the evidence that some incident or activity arising out of [his] employment caused the disability on which the worker’s compensation claim is based.” Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 24, 571 N.W.2d 376, 381. This level of proof “need not arise to a degree of absolute certainty, but an award may not be based upon mere possibility or speculative evidence.” Id. To meet his degree of proof “a possibility is insufficient and a probability is necessary.” Maroney v. Aman, 1997 SD 73, ¶ 9, 565 N.W.2d 70, 73.

[¶ 14.] The Department found that no compensable injury occurred on January 27, 1994. The findings of fact entered by the Department were based on a finding of a lack of credibility. Just recently, this Court reiterated the notion that “where the claimant’s subjective experience of pain is central to the issue of whether recovery is warranted, the credibility of the claimant is always at issue.” Lends His Horse, Jr. v. Myrl & Roy’s Paving, Inc., 2000 SD 146, ¶ 14, 619 N.W.2d 516; see also Johnson v. Albertson’s, 2000 SD 47, 610 N.W.2d 449; Wagaman v. Sioux Falls Const., 1998 SD 27, 576 N.W.2d 237. The Department, after hearing numerous inconsistent statements made by Schneider, found Schneider to be not credible. “Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be clearly erroneous.” First Nat’l. Bank v. Bank of Lemmon, 535 N.W.2d 866, 869 (S.D.1995) (citations omitted). “Determining the credibility of the witnesses is the role of the factfinder. Where the [Department] has resolved conflicts in evidence, we cannot change its findings.” Mash v. Cutler, 488 N.W.2d 642, 653-54 (S.D.1992) (citations omitted). Our long-standing precedent is clear: a claimant purporting to suffer from continuous and debilitating pain must be credible, and any medical diagnosis based on an inaccurate and incomplete medical history cannot insulate a claimant from the Department’s findings.

[¶ 15.] To affirm the decision of the circuit court, in essence, would allow Schneider to change course in midstream. The number of inconsistent versions of his medical history provided the Department with the factual basis to characterize Schneider as not credible. The version he gave to Nurse Hickenbotham compared to the version he gave to Dr. Teuber and then compared to the version given to Dr. Goff is sufficient evidence for the Department to deem Schneider not credible. This comparison of historical accounts does not even consider Schneider’s demeanor and what the Department observed at the hearing, which would only support the finding that Schneider was not credible. This “change in course” was recognized by the Department and is respected by this Court.

[¶ 16.] Furthermore, there was an inadequate foundation for the medical opinions expressed by Drs. Teuber and Goff as those opinions were based on Schneider’s inaccurate and incomplete medical history. “The value of the opinion of an expert witness is no better than the facts upon which they are based. It cannot rise above its foundation and proves nothing if its factual basis is not true.” Johnson, 2000 SD 47, ¶ 25, 610 N.W.2d at 455 (citing Podio v. American Colloid Co., 83 S.D. 528, 532, 162 N.W.2d 385, 387 (1968)). In other words, medical testimony is only as credible as its foundation. See Lends His Horse, swpra. Thus, the Department could reject both the five and expert testimony based on its finding that Schneider lacked credibility by giving an incomplete representation of his injuries.

[¶ 17.] After reviewing all the evidence, it cannot be said this Court is “definitely and firmly convinced that a mistake has been made.” Sopko v. C & R Trans. Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228; see also Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992). Schneider has faded “to show by a preponderance of the evidence that some incident or activity arising out of his employment caused the disability on which the workers’ compensation claim is based.” Kester, supra. We reverse.

[IT 18.] 2. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE DEPARTMENT’S DECISION ON REMAND THAT SCHNEIDER WAS PERMANENTLY AND TOTALLY DISABLED.

[¶ 19.] We need not address this issue as we reverse on Issue 1.

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

[¶ 21.] SABERS and KONENKAMP, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 22.] The majority opinion erroneously dismisses the medical testimony in this case based on perceived inconsistencies and a finding of suspect credibility. Schneider testified that “I had hit a snowdrift, or something of that nature, and I felt a sharp pain” while driving a snowplow on January 27, 1994. Schneider called his supervisor and told him that driving the plow was hurting his back and he could not continue. After making numerous stops because of the pain, he eventually completed his route and returned to the DOT garage. Schneider filed a report of injury which stated, “experienced a severe pain in lower back, left hip, left leg while driving truck to plow snow” that “occurred while driving truck to plow snow.” He has not worked since.

[¶ 23.] The Department denied benefits finding that:

1. Claimant’s credibility is questionable and suspect because of information he either supplied or failed to supply.
2. Claimant’s complaints of pain and physical disability were the same prior to January 27,1994, as thereafter.

[¶ 24.] The circuit court reversed the Department’s decision finding that:

1. The evidence is not disputed that claimant’s back condition became worse after the incident where he reported pain in the course of driving and operating the snowplow on January 27, 1994, as compared with the symptoms and physical conditions observed by his physical therapist prior to the January 27 injury.
2. The court does not rely on Schneider’s credibility in any way in finding that the claimant was diagnosed with only a bulging disk prior to January 27, 1994, when he was diagnosed with a free fragment that had completely left the disk space and was pressing on the nerve.
3. Subsequent to the snowplow incident on January 27, 1994, claimant has never been able to reach the level of improvement and recovery that he attained after his wood chopping injury.
4. The conclusion drawn by the Department ... is not supported by any substantial evidence.

The circuit court determined that a work related injury did occur and that the Department’s findings were not supported by substantial evidence or were clearly erroneous. The circuit court found that Schneider established that an aggravation of an old injury occurred, and remanded to the Department for an award of benefits.

[¶ 25.] It is incumbent upon Schneider to establish a causal relationship between his injury and his employment to collect workers’ compensation benefits. See Gilchrist v. Trail King Industries Inc., 2000 SD 68, ¶ 7, 612 N.W.2d 1, 2. This requirement does not mean that Schneider must show “that his employment was the proximate cause, direct, or sole cause of his injury; rather [he] must show that his employment was a ‘contributing factor’ to his injury.” Id. (citation omitted). “It is sufficient that the disability “was brought on by strain or overexertion incident to the employment, though the exertion or strain need not be unusual or other than that occurring in the normal course of employment.’ ” Tischler v. United Parcel Service, 1996 SD 98, ¶ 27, 552 N.W.2d 597, 603.

[¶ 26.] “The burden of proof is on [Schneider] to show by a preponderance of the evidence that some incident or activity arising out of his employment caused the disability on which the workers’ compensation claim is based.” Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 24, 571 N.W.2d 376, 381. This level of proof “need not arise to a degree of absolute certainty, but an award may not be based upon mere possibility or speculative evidence.” Id. To meet his degree of proof “a possibility is insufficient and a probability is necessary.” Maroney v. Aman, 1997 SD 73, ¶ 9, 565 N.W.2d 70, 73.

[¶ 27.] The Department erroneously found that no compensable injury occurred on January 27, 1994. The findings of fact entered by the Department were based on a finding of a lack of credibility. While giving due regard to the Department’s determination on credibility, I agree with the circuit court’s finding of error in the Department’s reasoning. The Department determined that Schneider lacked credibility because of his conflicting historical accounts of the injury and his inability to describe what occurred on January 27, 1994.

[¶ 28.] The record indicates that Schneider had difficulty relaying his history of back problems to medical providers. Yet, that finding does not defeat Schneider’s claim out-of-hand. Our inquiry is whether Schneider injured or aggravated a prior condition in the course of employment with the DOT. Tischler, 1996 SD 98, ¶ 28, 552 N.W.2d at 603. Schneider must demonstrate that “the strain of his employment was a contributing factor to his medical condition.” Schuck, 529 N.W.2d at 899.

[¶ 29.] In relation to the January 27, 1994 incident Schneider stated in his deposition that his back pain “just more or less started.” At the hearing, the following exchange occurred on cross-examination:

Q: Do you really know what happened? Can you point to anything specific that happened that day that caused your back pain to start?
A: It was the constant bounce, constant jar. The plow is moving. I had to have hit something or something because all of a sudden when my back and the leg pain, it shot to my toes.
Q: But you can’t remember anything in particular, can you?
A: Sir[,] as far as?
Q: Any incident that actually happened to bring on this back and leg pain?
A: Any incident?
Q: Any particular thing? You can’t really remember hitting anything with your truck or anything else, can you?
A: Yes, I can, sir, because I had to pull my truck over.
Q: At your deposition I asked you that question and I said, was there anything you can point to that brought that on, and I’m thinking of a particular incident. Your answer was I don’t understand that, sir. And I asked another question, I mean had you had something hit your leg? Had you bent over, had you lifted something, had your truck hit something, was there anything that seemed to cause it or did it just start? Your answer was it more or less started. That is how you answered the question then do you have a different recollection now about what happened?
A: All I know — I remember the sharp pain. I remember taking my truck to the side of the road, locking my air brakes, having my safety lights all on, which they would be on and I had to dismount my truck.

Based on a comparison of Schneider’s testimony at the hearing to his deposition testimony, the Department erroneously found that he lacked credibility.

[¶ 30.] The Department erred by utilizing this perceived inconsistency to dismiss evidence that Schneider’s condition was worsened by this incident. I acknowledge that “[i]t is incumbent upon the circuit court to be duly aware of the opportunity of the Department to judge at first hand the credibility of the witness.” Lends His Horse, 619 N.W.2d at 520. Yet, the majority opinion’s reliance on Lends His Horse is misplaced. Lends His Horse does not dictate that we reject out of hand a worker’s compensation claim when there is a finding of lack of credibility. While subjective experiences of pain are always at issue, the majority opinion forgets that so is medical evidence. The Department overlooked evidence relating to the accident report filed by Schneider, the worsening of Schneider’s medical condition, the medical testimony of Coleman who treated Schneider both before and after January 27, 1994, and Dr. Teuber’s opinion that driving the snowplow aggravated the condition.

[¶ 31.] When evidence on the issue of causation is submitted to the Department in deposition form “we review that testimony de novo and we are unhampered by the clearly erroneous rule.” Tischler, 1996 SD 98, ¶ 24, 552 N.W.2d at 602. “This means that we will decide for ourselves the credibility of the deponent and the weight and value to be attached to their testimony.” Id.

[¶ 32.] Dr. Teuber stated on deposition that he believed that an aggravation of the prior injury occurred while operating the snowplow after the wood-chopping incident. He stated that simply driving a snowplow could cause the type of movement that can aggravate a pre-existing disc problem. Additionally, Coleman stated on deposition that Schneider’s condition had become worse after January 27, 1994. He stated that it was probable there was an initiating event that aggravated this condition and it just does not happen on its own. Specifically, it was probable the work incident was the contributing factor 'to his current level of disability.

[¶ 33.] The testimony of the medical experts establishes that Schneider was initially diagnosed as suffering from a bulging disc. After January 27, 1994, the date of the snowplow incident, Schneider was diagnosed as experiencing a free-floating fragment in his back that required surgery. In addition, the testimony establishes that Schneider’s level of pain increased after the snowplow incident. As recognized by the trial court, “the evidence is not disputed that claimant’s back condition became worse after the incident where he reported pain in the course of driving and operating the snowplow on January 27, 1994, as compared with the symptoms and physical conditions observed by his physical therapist prior to the January 27 injury.” The Department was clearly erroneous in determining that Schneider’s complaints were unchanged after January 27,1994.

[¶ 34.] There was an adequate foundation for these medical opinions and the Department was clearly erroneous in determining that Schneider did not establish a causal connection between his employment and his injuries. The evidence produced at the hearing provided support that the operation of the snowplow was a contributing factor to this injury. I am definitely and firmly convinced a mistake has been committed and I dissent.

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

      . At the Departmental hearing Schneider stated "I missed a few days, I mean, I can't say exactly the amount of days I missed.” In reality, Schneider missed 27 days of work between November of 1993 and January 1994. On his absence slips he wrote that his absence was attributable to "a pinch nerve in his back.”

      . Schneider testified at the Departmental hearing he only had "minor pains, nothing, that, you know, when I injured it.” The accuracy of this statement is not reflected by his use of sick leave because of "a pinch nerve in his back.”

      .During his deposition testimony on November 4, 1998 Schneider stated that "it just more or less started” in response to the question of what caused the injury. On cross-examination at the Department hearing, he could not pinpoint exactly when the pain began despite his claim on direct examination that it happened after hitting a snowdrift.

      . In the Department's original Findings of Fact, dated April, 17, 1997, the Department found:
      17. Based on Claimant's hearing testimony, the Claimant’s deposition testimony, and the opportunity to observe the Claimant testifying at the hearing, this Department finds that the Claimant's testimony concerning the alleged incident of January 27, 1994, is not persuasive, is lacking in credibility, and does not satisfy the Claimant’s burden of proof or persuasion.

      21. On February 4, 1994 (only one week after his alleged work-related injury of January 27, 1994), Claimant sought medical care for his back and leg problems at the Veterans Administration (VA) Hospital in Fort Meade, South Dakota.
      22. On seeking medical care at the VA Hospital on February 4, 1994, Claimant initially discussed his pain complaints with registered nurse Darleen Hickenbotham, a VA employee.
      23. When Claimant came to the VA clinic on February 4, 1994, with complaints about back and leg pain, Hickenbotham took a history from Claimant, and Claimant advised her that he had been having severe pain in his lumbar area with radiating pain down his left leg to the toe since November 11. Claimant further told nurse Hickenbotham that he had been suffering from this pain since he injured himself splitting wood with an axe. Claimant advised nurse Hickenbotham that he had been to physical therapy and had been seen by a chiropractor with no help. Claimant further advised the nurse that he worked for the State and is not allowed to work in his present condition.
      24. Claimant never advised nurse Hicken-botham or anyone else at the VA Hospital on February 4, 1994, that he had been injured on the job with the DOT. Nurse Hickenbotham confirmed Claimant’s failure to advise her of this, both verbally in her deposition testimony as well as in contemporaneous written records prepared by her on February 4, 1994.
      25. Nurse Hickenbotham referred Claimant to physician's assistant Ronald Johnson, also at the VA medical center, who in turn referred Claimant to VA physical therapy. Physical therapy notes and Johnson’s testimony for February 4, 1994, confirm that Claimant advised Johnson and physical therapy that he had injured his back on November 11, 1993, while splitting wood and that he had felt pain down his left leg. Claimant never mentioned anything about injuring himself while driving a snowplow on January 27, 1994, or any other work-related injury to either PA Johnson or the VA physical therapy.
      26. On February 4, 1994, Claimant related physical problems he was suffering in regard to his leg and back to the incident in November 1993, when he was splitting wood at home. He never related his problems to any work-related incident.

      These findings seem to be ignored by the circuit court or at the very least not given dle amount of deference required by prior case law.

      . The dissent disregards our long-standing precedent that credibility determinations are reserved exclusively for the Department. This Court declines the dissent's invitation to supplant its own judgment for that of the Department’s. The strained result on credibility reached by the dissent is not the function of this appellate court.


author:
MILLER, Chief Justice.
      SABERS, Justice

text:
    2001 SD 67
    STATE of South Dakota, Plaintiff and Appellee, v. Daniel Neil CHARLES a/k/a Daniel Heinzelman a/k/a Daniel Ingalls, Defendant and Appellant.
    No. 21526.
    Supreme Court of South Dakota.
    Argued April 24, 2001.
    Decided May 30, 2001.

      Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Timothy J. Rensch and Patrick K. Duffy, Rapid City, SD, Attorneys for defendant and appellant.
   MILLER, Chief Justice.

[¶ 1.] In this appeal, we affirm a conviction of first degree murder and hold that the trial court did not err in denying a motion for judgment of acquittal or in refusing to instruct the jury on mistake of fact.

FACTS

[¶ 2.] Daniel Charles, who was fourteen years of age during the summer of 1999, lived on a ranch near Opal, South Dakota with his stepfather, Duane Ingalls. Charles’ mother and Ingalls had divorced the previous summer, but Charles returned to live with Ingalls because his mother’s job as a truck driver rendered her unable to care for him. Charles alleged at trial that he loved Ingalls despite the fact that Ingalls often subjected him to physical and verbal abuse. Charles testified that after abusive incidents he would frequently retreat to his second floor bedroom, and, when he would see Ingalls in the yard, he would aim an unloaded .25-06 caliber rifle at Ingalls’ head and dry fire the rifle to relieve his emotions.

[¶ 3.] On July 23, 1999, Charles awoke at 4:30 a.m. and prepared breakfast. By 7 a.m. he was in the hayfield about one-half mile from the ranch home. Shortly after he began windrowing, Ingalls arrived and stopped him. Ingalls yelled at him for improper windrowing and “cuffed” him on the side of the head knocking his head into the glass in the door of the tractor. Charles resumed working, finished the windrowing and returned home to prepare lunch.

[¶ 4.] Charles waited in his room for Ingalls to return from the hayfield. When he arrived and was walking up to the home, Charles pointed the .25-06 caliber rifle at Ingalls’ head and pulled the trigger. Tragically, the rifle fired instantly killing Ingalls. Charles contends he did not know the rifle was loaded.

[¶ 5.] After shooting and killing Ingalls, Charles dragged the body into the garage, cleaned the blood off the front yard sidewalk with a water hose and telephoned his mother. He convinced her to come to the ranch by telling her that Ingalls had not returned home the previous night. She arrived about 8 p.m., and he then told her there had been an accident and that In-galls was dead. She immediately called 911.

[¶ 6.] Law enforcement and other authorities arrived and began processing the crime scene. Pertinent to this appeal, the agents collected four bullets from the rifle and carefully placed them in a baggie. These bullets were used in ballistics, residue and other analyses, but they were never checked for fingerprints.

[¶ 7.] Charles told the investigators a fabricated story about fox hunting in the front yard, which led to the accidental discharge of the rifle and the death of Ingalls. Out of concern for his emotional state (and considering his prior suicide attempt and hospitalization in a hospital psychiatric ward), Charles was taken to the mental unit of Rapid City Regional Hospital for observation. There he roomed with another youth, W.L. W.L. testified at trial that Charles told him: (1) he wanted to kill his stepfather because Ingalls was a “mean guy”; (2) he shot Ingalls from the upstairs window; (3) the police did not suspect him because they thought it was an accident; (4) he had considered other ways of killing his stepfather; (5) he faked being in shock to make himself more believable; (6) he would kill W.L. and his father if W.L. revealed what Charles had told him.

[¶ 8.] Despite Charles’ threat, W.L. told law enforcement about his conversation with Charles. Due to the differing stories between Charles and W.L., agents interviewed Charles again. Charles maintained he did not murder Ingalls and that he had lied to W.L. to act tough. Charles’ mother attended this interview and ended it when he became emotionally upset. She then spoke with Charles alone. He admitted to his mother that he fabricated the fox hunting story and that actually he thought the rifle was unloaded. His mother relayed this to the agents.

[¶ 9.] Charles was originally charged in juvenile court, but, after a hearing, he was transferred to adult court. We denied his attempted intermediate appeal of that transfer order. Charles was tried on the charges of first degree murder, second degree murder and first degree manslaughter. The jury convicted him of first degree murder and he was sentenced to life in prison. The trial court denied Charles’ post trial motion for judgment of acquittal. Charles appeals.

STANDARD OF REVIEW

[¶ 10.] When we review a denial of a motion for judgment of acquittal, the question is whether there is sufficient evidence, if believed by the jury, from which the jury could find the defendant guilty beyond a reasonable doubt. State v. Augustine, 2000 SD 93, ¶ 26, 614 N.W.2d 796, 800 (citations omitted). In this respect, we accept the evidence and the most favorable inferences fairly drawn from that evidence in support of the verdict. State v. Heftel, 513 N.W.2d 397, 399 (S.D.1994) (citations omitted). “ “We do not resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of an explanation, or weigh the evidence.’ ” State v. Karlen, 1999 SD 12, ¶ 49, 589 N.W.2d 594, 605 (citations omitted).

DECISION

[¶ 11.] 1. Trial court did not err in denying Charles’ motion for judgment of acquittal.

[¶ 12.] Charles argues that the State destroyed exculpatory evidence when it failed to check the four bullets removed from the murder weapon for fingerprints before conducting other fingerprint destructive tests. He contends that this destruction of evidence constitutes reversible error, denied him a fair trial and deprived him of due process under the South Dakota and Federal Constitution. Furthermore, Charles asserts that the alleged spoliation of this “key” evidence creates an inference or presumption that the evidence would not have supported the charges against the defendant. State v. Kietzke, 85 S.D. 502, 515, 186 N.W.2d 551, 558 (1971).

[¶ 13.] In order to prevail, Charles must show prejudicial error. Kietzke, 85 S.D. at 515, 186 N.W.2d at 558. This he failed to do. Based on his complaint of failure of due process, this Court requires that the following four questions be answered affirmatively to show a due process violation, “(1) Was the defense unaware of the evidence? (2) Is the evidence favorable to the defense? (3) Is the evidence material to the defense? (4) Did the defense make a request for the evidence?” Black v. Class, 1997 SD 22, ¶ 16, 560 N.W.2d 544, 548 (citations omitted). Charles does not address this four-part test anywhere in his briefs. He simply focuses on the bullets and the lack of fingerprints or the potential fingerprints that might have been on them. His approach does not fully address our concern on appeal. Our job is to review the denial of judgment of acquittal by examining whether the State presented sufficient evidence to find Charles guilty beyond a reasonable doubt. Augustine, 2000 SD 93, ¶ 26, 614 N.W.2d at 800.

[¶ 14.] Charles would have us focus all of our attention on the bullets and the fingerprints that may or may not have been on them and ignore all the other evidence in this case. While it may be true that the spoliation of any fingerprints that may have been on the shells creates a presumption or inference that the evidence would not have supported the State’s charges against Charles, we must not forget that any fingerprints on the bullets would have only been one piece of evidence. Charles seems to overlook the fact that the police conduct in examining and preserving the cartridges was in direct reaction to his false story regarding an accident resulting from shooting at a fox. The question we must resolve is whether the State produced sufficient evidence upon which the jury could find Charles guilty beyond a reasonable doubt. Id.

[¶ 15.] Charles complains that the State proceeded upon the theory that Charles loaded the rifle and then spoiled the evidence that could potentially have proven the opposite. Charles cross examined witnesses on this point and argued this point to the jury. Apparently, the jury did not accept Charles’ argument. Contrary to Charles’ argument, the potential absence of his fingerprints on the bullets would not positively show he did not intentionally shoot Ingalls. It is entirely possible for a person to fire a weapon knowing it was loaded without having personally loaded the weapon.

[¶ 16.] The jurors heard evidence indicating that Charles’ version of the event changed dramatically initially and then again altered slightly at trial. They heard W.L. testify about his conversation with Charles, wherein Charles indicated he purposefully killed Ingalls, that the fox hunting story was a lie and that Charles had contemplated other ways to kill Ingalls. They heard the testimony that Charles dragged Ingalls’ body into the garage and shut the door, cleaned the blood off the sidewalk and cleaned the clothing he had worn. They heard that Charles correctly identified how many shells remained in the rifle although he denied loading it. Furthermore, the jurors heard Charles’ argument about the spoiled fingerprint evidence and did not accept it.

[¶ 17.] When considering the evidence presented to the jury, it is clear the State produced sufficient evidence upon which the jury could base their decision to convict Charles of first degree murder.

[¶ 18.] 2. The trial court did not abuse its discretion in refusing to include a mistake of fact instruction.

[¶ 19.] Trial courts have broad discretion in instructing the jury and it is not error for a court to refuse to amplify principles embodied in given instructions. State v. Walton, 1999 SD 80, ¶¶ 12-13, 600 N.W.2d 524, 528 (citations omitted). A criminal defendant is entitled to an instruction on his theory of the case when evidence exists to support his theory. State v. Charger, 2000 SD 70, ¶ 40, 611 N.W.2d 221, 229 (citations omitted). Jury instructions are adequate when “ ‘they give a full and correct statement of the law applicable to the case.’ ” State v. McVay, 2000 SD 72, ¶ 18, 612 N.W.2d 572, 576 (citation omitted). On appeal, the defendant must show that, “the jury might and probably would have returned a different verdict, ...” with different instructions. State v. Grey Owl, 295 N.W.2d 748, 751 (S.D.1980).

[¶ 20.] Charles complains the trial court erred when it refused his proposed mistake of fact instruction which stated, “[a]n act is not a crime when committed or omitted under an ignorance or mistake of fact which disproves any criminal intent.” The trial court instructed the jury on the elements of the crimes charged and gave a specific intent instruction which stated, “[I]n the crimes of First Degree Murder, [ ... ] Charles [ ... ] must have the specific intent to effectuate the death of Duane Ingalls. If this specific intent did not exist, the crime of First Degree Murder was not committed.” We have previously decided whether it was error for a trial court to refuse a mistake of fact instruction stating “ Vhenever an intent instruction involving the defendant’s mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction.’ State v. Johnston, 478 N.W.2d 281, 283 (S.D.1991)(citing State v. Griscom, 101 N.M. 377, 683 P.2d 59 (App.1984)) (emphasis added). Viewing the instructions as a whole and our previous resolution of this issue, Charles failed to show any error by the trial court in refusing to give his proposed mistake of fact instruction.

[¶ 21.] Affirmed.

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

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

SABERS, Justice

(concurring specially).

[¶ 24.] I concur in the majority opinion except that I write separately to point out that in the future, the police and the prosecution should gather all relevant evidence before conducting tests that renders evidence useless. To do otherwise is irresponsible and actually harms the State in its search for justice. In this case, the State was able to meet its burden despite the presumption or inference created against it by its spoliation of evidence. In future cases, the State could dig itself into an inescapable hole before it gets to trial if it proceeds without caution.

       The issue of transfer to adult court has not been raised on this direct appeal.