author: MINGE, Judge.

text:
    Curt DANIELSON, Appellant, v. NATIONAL SUPPLY COMPANY, a division of Affinity Group, d/b/a Camping World, Respondent.
    No. A03-325.
    Court of Appeals of Minnesota.
    Oct. 14, 2003.

      Kevin S. Carpenter, Carpenter Injury Law Office, St. Cloud, MN, for appellant.
    Gordon H. Hansmeier, Sarah L. Smith, RajkowsM Hansmeier Ltd., St. Cloud, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, PETERSON, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

Appellant, a Minnesota resident, sued respondent retailer in Minnesota for injuries suffered in Arizona while using a ladder purchased from a store of respondent in Texas. The district court dismissed appellant’s claim on the grounds that it was time barred under the law of both of the other states and the doctrine of forum non conveniens. Because the district court should have applied Minnesota’s statute of limitations, and because the doctrine of forum non conveniens does not support dismissal, we reverse.

FACTS

Appellant Danielson is a Minnesota resident and operates a contracting business in this state during part of the year. He also spends approximately half the year traveling in a motor home in the southern part of the United States. In early 2000, Danielson bought a stepladder from respondent's Camping World store in Mission, Texas. On February 13, 2000, Daniel-son was using the ladder in Arizona when he fell and injured his foot. Danielson believed the ladder was defective and eventually returned it to Camping World in Mission, Texas. Danielson received medical treatment in Arizona and Minnesota but did not fully recover from his injuries and sought compensation. When Danielson determined that both the manufacturer and distributor of the ladder had gone out of business, he filed suit against Camping World in Minnesota.

Camping World is the trade name used by National Supply Company, a division of the Affinity Group, Inc., a Delaware corporation with its principal offices in Colorado. The Camping World division has its principal office in Kentucky, and stores in many states, including at least one store in Texas and one store in Minnesota. It has a registered agent for service of process in Minnesota. The record is silent as to whether Camping World has a store in Arizona or is otherwise amenable to jurisdiction in that state. Danielson claims he patronized the Texas Camping World store because he had visited its Minnesota store and preferred to do business with a familiar firm.

Camping World does not dispute that Danielson purchased the ladder at its Mission, Texas store. Nor does Camping World dispute that Danielson returned the ladder to that store. However, the record indicates that Camping World has not been able to identify the employees who sold the ladder to Danielson or who dealt with him when he returned the ladder.

Danielson’s injury occurred on February 18, 2000, and he did not commence this action until after February 13, 2002. Because the statutes of limitation in Texas and Arizona are two years, the statutes of limitation in those states have already run. But the applicable statute of limitations in Minnesota is six years.

Camping World moved to dismiss Dan-ielson’s claim as time barred under either Texas or Arizona law and forum non con-veniens. The district court ruled that Texas or Arizona law applied and that accordingly, Danielson’s claim was time barred. The district court also dismissed Daniel-son’s claim on the ground of forum non conveniens. Danielson argues that Minnesota law applies, that his claim is therefore timely, and that the claim should not have been dismissed on the ground of forum non conveniens.

ISSUES

1. Does Minnesota’s statute of limitations apply to a product-liability claim brought in Minnesota by a Minnesota resident for injuries occurring in a second state for a product purchased in a third state?

2. Was it an abuse of discretion for the district court to dismiss this action on the ground of forum non conveniens?

ANALYSIS

I.

CHOICE OF LAW

We first decide whether the district court erred by not applying the Minnesota statute of limitations. We treat choice-of-law questions as questions of law and review them de novo. See Reed v. Univ. of N.D., 543 N.W.2d 106, 107-08 (Minn.App.1996) (framing issue as whether district court erred in its choice-of-law analysis).

Traditionally when a conflict-of-law issue arises, the preliminary step is to decide whether the question is substantive or procedural. If the matter is one of substantive law, Minnesota applies a multi-step choice-of-law analysis, which includes application of five choice-influencing considerations, to determine which state’s law applies. Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 469 (Minn.1994). This analysis was initially adopted in Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973). On the other hand, if the matter is one of procedural law, Minnesota follows the “almost universal rule that matters of procedure and remedies [are] governed by the law of the forum state.” Davis v. Furlong, 328 N.W.2d 150, 153 (Minn.1983) (citation omitted).

Here the matter involves conflicting statutes of limitations. Thus, we must decide both whether Minnesota follows the substantive/procedural distinction with respect to statutes of limitation and if so, whether a statute of limitations is procedural or substantive. The Restatement (Second) of Conflict of Laws speaks to part of this issue noting that traditionally, “the courts usually characterized statutes of limitation as procedural.” Restatement (Second) of Conflict of Laws § 142 cmt. e (1971). However, the Restatement observes that courts

no longer characterize the issue of limitations as ipso facto procedural and hence governed by the law of the forum. Instead, the courts select the state whose law will be applied to the issue of limitations by a process essentially similar to that used in the case of other issues of choice of law.

Id.

A. Statutes of Limitation as Procedural Approach

There is some ambiguity as to what approach Minnesota follows. In 1940, the Minnesota Supreme Court took the approach that statutes of limitation are procedural. In re Daniel’s Estate, 208 Minn. 420, 427, 294 N.W. 465, 469 (1940). The Minnesota Supreme Court took the same approach in 1963. Am. Mut. Liab. Ins. Co. v. Reed Cleaners, 265 Minn. 503, 506 n. 1, 122 N.W.2d 178, 180 n. 1 (1963). And this court followed that approach in 1989. United States Leasing Co. v. Biba Info. Processing Servs., Inc., 436 N.W.2d 823, 825 (Minn.App.1989), review denied (Minn. May 24, 1989).

But Minnesota has not been consistent. In 1974, the Minnesota Supreme Court applied the modern approach in deciding whether to apply Minnesota’s statute of limitations. Myers v. Gov’t Employees Ins. Co., 302 Minn. 359, 363-64, 225 N.W.2d 238, 241 (1974). In Myers, the plaintiffs were residents of Minnesota and were involved in an automobile accident in Louisiana. Id. at 360-61, 225 N.W.2d at 240. The plaintiffs sued the defendant insurance company in Minnesota, seeking to apply Louisiana’s direct action statute. Id. Had they brought their claim in Louisiana, it would have been barred by Louisiana’s one-year statute of limitations. Id. Under Minnesota’s statute of limitations, their claim was timely. Id. The Minnesota Supreme Court addressed whether the Louisiana direct action statute created a substantive right, then applied choice-of-law analysis to determine that the Louisiana direct action statute should apply and that the Minnesota statute of limitations should apply. Id. at 363-64, 225 N.W.2d at 241-243. In so doing, the court analyzed both the direct action statute and the statute of limitations issues under the five choice-influencing considerations set forth in Milkovich. Id. The court in Myers did not cite, much less purport to overrule, the traditional rule that statutes of limitation are procedural and are governed by the law of the forum.

Although the Minnesota Supreme Court has not directly revisited the statute of limitations issue since the decision in Myers, in 1983 it referenced the Myers decision in a footnote. Davis, 328 N.W.2d at 152 n. 2. The Davis court declined to recognize any exception to the rule that matters of procedure are governed by the law of the forum. Id. at 153. The Myers decision is also called into question by a more recent case, which, in the context of forum non conveniens, characterized statutes of limitation as procedural. Kennecott Holdings Corp. v. Liberty Mut. Ins. Co., 578 N.W.2d 358, 361 n. 7 (Minn.1998).

Under the cases of American Mutual and In re Daniel’s Estate, the statutes of limitation are procedural. Am. Mut., 265 Minn. at 506 n. 1, 122 N.W.2d at 180 n. 1; In re Daniel’s Estate, 208 Minn. at 427, 294 N.W. at 469. And since the law of the forum governs procedural issues, we would apply the Minnesota statute of limitations in this case. Pursuant to this analysis, appellant’s claim is timely because it was filed before the end of Minnesota’s six-year statute of limitations.

B. Choice-Inñuencing Consideration Approach

It appears from the Restatement that courts are increasingly recognizing that the statute of limitations is outcome determinative, that it may be inappropriate to use the procedural classification, and that determining what statute of limitations is to be applied should be decided the same as substantive law conflicts generally. Restatement (Second) of Conflict of Laws § 142 cmt. e. Because Minnesota has shown some inclination to apply the choice-influencing considerations analysis, we will also apply that analysis to this case.

The threshold stage in the choice-influencing consideration analysis is to establish that there actually is a true conflict of laws and that more than one state’s law may be constitutionally applied. Neither question is at issue in this case. The next stage in this analysis is to apply five choice-influencing considerations: (1) predictability of result; (2) maintenance of interstate order; (3) simplification of judicial task; (4) advancement of the forum’s governmental interests; and (5) application of the better rule of law. Jepson, 513 N.W.2d at 470. The law in Minnesota is not clear on whether the court must consider all five choice-influencing considerations in a tort case. In 1995, the eighth circuit noted that some Minnesota opinions addressing choice of law in tort cases

skip the analysis of ... the first three considerations.... But the Minnesota Court of Appeals as recently as September 1994 considered all five factors (the first to a lesser degree) in a tort case, noting only that “[t]ort actions generally do not implicate party expectations” and discussing the remaining factors at some length.

Nesladek v. Ford Motor Co., 46 F.3d 734, 738-39 (8th Cir.1995) (citing Lommen v. City of East Grand Forks, 522 N.W.2d 148, 150-53 (Minn.App.1994)). Although this court more recently said that “only the last two elements of the five-point methodology for resolving conflict questions are relevant to tort cases” Boatwright v. Budak, 625 N.W.2d 483, 489 (Minn.App.2001), review denied (Minn. July 24, 2001), in the interest of thoroughness, we will analyze all five factors.

1. Predictability of Result

This factor addresses whether the choice of law was predictable before the time of the transaction or event giving rise to the cause of action. In Jepson, the court noted that “[predictability of result as it relates to the tort aspect of a case is not of great importance ... because of the unplanned nature of ... accidents.” Jepson, 513 N.W.2d at 470 (citations omitted). Rather, this factor applies “primarily to consensual transactions where the parties desire advance notice of which state law will govern in future disputes.” Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 454 (Minn.App.2001) (citation omitted).

There is nothing in the record to indicate that this was a transaction where the parties desired advance notice of what state law would apply in a future dispute. Danielson points out that he bought the ladder from Camping World because he was familiar with Camping World’s Minnesota store. That familiarity with the name of the store, does not, however, constitute an expectation that Minnesota law would govern any future disputes. Danielson cannot point to a legitimate expectation that he thought Minnesota law would apply before he was injured while using the ladder. Accordingly, this factor does not favor any of the forums in this case.

We do note, however, that this factor could have relevance in certain tort cases. For example, if a person or business designs its insurance coverage, insurance rates, or record retention policy based on the expectation that a particular state’s statute of limitations would apply to claims, predictability of result may be important. That argument has not been raised in this case, so it does not affect our decision.

2. Maintenance of Interstate Order

This factor addresses whether the application of Minnesota law would manifest disrespect for Arizona or Texas or impede the interstate movement of people and goods. Jepson, 513 N.W.2d at 471. Evidence of forum shopping or evidence that application of one state’s law would promote forum shopping would be an attempt to evade and would indicate disrespect for Arizona or Texas law. See id. In addition, “[m]aintenance of interstate order [in tort cases] is generally satisfied as long as the state whose laws are purportedly in conflict has sufficient contacts with and interest in the facts and' issues being litigated.” Myers, 302 Minn. at 365, 225 N.W.2d at 242.

Here, all three possible forums have statutes of limitations. Applying Minnesota’s six-year statute of limitations would indicate disrespect for Texas and Arizona, and applying their two-year statute of limitations would indicate disrespect for Minnesota. Thus, this factor may not favor any of the three forums. Compare Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 95 (Minn.2000) (concluding maintenance of interstate order was neutral because “both states have an equal interest as evidenced by the fact that both have laws directly pertaining to no-fault benefits recovery on the present facts”), with State Farm Mut. Auto. Ins. Co. v. Great West Cas. Co., 615 N.W.2d 871, 873 (Minn.App.2000) (finding that maintenance of interstate order favored application of Minnesota law because “Nevada does not have a no-fault act; therefore, Minnesota is not interfering with any Nevada law”). This factor is neutral.

3. Simplification of Judicial Task

This factor is not particularly relevant where the competing laws are straightforward and the courts’ interpretations of them are adequate “to provide the guidance a trial court might wish to have.” Nesladek, 46 F.3d at 739; see also Jepson, 513 N.W.2d at 472 (finding that “simplification of the judicial task is not a significant factor in this case because the law of either state could be applied without difficulty”). This factor could be relevant if parties were arguing about the nuances of the statutes of limitation of competing states. In that ease, the forum state would have the burden of deciphering the intricacies of another state’s statute of limitations.

Here the parties seem to agree that all three statutes of limitations are quite clear and easy to apply. Accordingly, this factor does not favor any of the forums. See Nodak, 604 N.W.2d at 95 (finding that because “the conflicting laws at issue are relatively clear in that there is no dispute that recovery is allowed under one but not the other, this factor favors neither state’s law”).

4. Advancement of the Forum’s Governmental Interest

This factor goes to which law would “most effectively advance a ‘significant interest of the forum’ state.” Medtronic, 630 N.W.2d at 455 (quoting Jepson, 513 N.W.2d at 472). This factor is designed to assure that Minnesota courts do not have to apply rules of law that are “inconsistent with Minnesota’s concept of fairness and equity.” Id. (quotation omitted). In considering which law will advance the governmental interest of Minnesota, the court is to consider the public policy of both (or in this case, all three) forums. Lommen, 522 N.W.2d at 152.

By using a shorter limitation period, Texas and Arizona are limiting stale claims and problems of proof, surprise, or abuse of the legal system that may be associated with stale claims. The overriding Minnesota interest is compensating tort victims. “Minnesota places great value in compensating tort victims. We have even refused to apply our law when the law of another state would better serve to compensate a tort victim.” Jepson, 513 N.W.2d at 472. Minnesota places an interest in “permitting its citizens access to [its] courts.... ” Myers, 225 N.W.2d at 243. By compensating tort victims, we reduce the chance that injured persons will be forced to seek public assistance as a result of their injuries. Compensating tort victims also reduces the risk that Minnesota medical providers will go unpaid for their services. In addition, Minnesota has an interest in promoting responsibility of sellers and producers. Application of either Texas or Arizona law would result in Dan-ielson not being compensated and would reduce the responsibility of sellers and producers for the products they place into the stream of commerce. Minnesota’s interests favor application of the Minnesota statute of limitations.

5. The Better Rule of Law

This factor should be addressed when the other factors are not conclusive as to which state’s law should be applied. Medtronic, 630 N.W.2d at 456-57; Reed, 543 N.W.2d at 109. As noted above, factors one, two, and three are neutral in this case. Although factor four (advancement of forum’s governmental interest) favors application of Minnesota law, some consideration of which state has the better rule of law is appropriate.

The better rule of law is “the rule that made ‘good socio-economic sense for the time when the court speaks.’” Jepson, 513 N.W.2d at 473 (quoting Robert A. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Calif. L.Rev. 1584, 1588 (1966)). It is impermissible to find that the law of the forum is the better rule of law only because the legislature enacted that law. If that were allowed, “forum law would always be the better law and this step in our choice of law analysis would be meaningless.” Jepson, 513 N.W.2d at 473.

As we already noted, compensation of tort victims has far-reaching effects, such as avoiding victim reliance on public assistance, restoring injured parties to good health, paying healthcare providers and holding parties responsible for the products they make or sell. We assume that Texas and Arizona wish to prevent stale claims and reduce liability exposure. Although these policies are both supported by strong considerations, it appears this state’s supreme court has identified fair compensation as the better policy. See Jepson, 513 N.W.2d at 472-73. This policy is better promoted by the six-year statute of limitations. In this sense, Minnesota has the better rule of law, and the Minnesota statute of limitations law should be applied.

The district court erred in not using Minnesota’s six-year statute of limitations. Both the approach which classifies the statute of limitations as procedural and the choice-influencing consideration analysis support this conclusion. Because our supreme court generally favors use of the choice-influencing consideration analysis and because of the shift to this choice of law approach, we follow § 142 of the Restatement, which applies the choice-influencing consideration analysis to statute of limitations conflicts.

II.

FORUM NON CONVENIENS

We next decide whether the district court abused its discretion by dismissing Danielson’s case on the grounds of forum non conveniens. Dismissal of a case on the grounds of forum non conveniens may be appropriate when “the exercise of personal jurisdiction imposes a hardship that does not rise to the level of a due process violation....” Rykoff-Sexton, Inc. v. Am. Appraisal Assocs., Inc., 469 N.W.2d 88, 91 (Minn.1991). The district court exercises broad discretion in deciding whether to dismiss an action on the grounds of forum non conveniens, and we will not reverse the district court’s decision unless we find that there has been an abuse of discretion. Bergquist v. Medtronic, Inc., 379 N.W.2d 508, 511 (Minn.1986).

In Bergquist, the Minnesota Supreme Court adopted the rule set forth in the United States Supreme Court case of Piper Aircraft Co. v. Reyno for Minnesota forum non conveniens cases. Id. at 512 (adopting rule of Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). In Piper Aircraft, the Supreme Court stated “where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.” Id. at 257, 102 S.Ct. at 266 (citations omitted). In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055, the Supreme Court enumerated both public and private factors to be considered in deciding whether a forum was appropriate. The court stated:

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcability [sic] of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial.

Id. at 508, 67 S.Ct. at 843. The court also discussed public factors to consider, stating:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Id. at 508-09, 67 S.Ct. at 843.

In this case, the district court found:
There are no contacts with the state of Minnesota other than the fact that [Dan-ielson] lives here about half of the year and [Camping World] has one store in Rogers, Minnesota. The sale and return of the ladder took place in Texas. The alleged injury took place in Arizona. Most of the potential witnesses are in Arizona or Texas. Therefore, the hardships of trying this case in Minnesota warrant a dismissal by forum non conve-niens.

However, there is nothing in the record of this case to indicate that Arizona courts would have jurisdiction over Camping World. Therefore, in determining whether the district court abused its discretion by finding that Minnesota is not a convenient forum, we consider Minnesota and Texas.

Texas is where the ladder was purchased and returned. At this stage it appears that the only possible witnesses in Texas would be the employees involved in those events. Camping World cannot or has not identified those employees. In any event, the purchase and return of the ladder to Camping World’s Mission, Texas store is not in dispute. On the other hand, there are witnesses in Minnesota. Daniel-son resides in Minnesota. Healthcare providers in Minnesota who have worked with Danielson may need to testify about the nature of Danielson’s injuries.

Camping World has not identified any experts who would testify on its behalf. The record indicates that Danielson has retained an expert based in Arkansas. It would be just as easy for this expert to travel to Minnesota as to Texas. In addition, Camping World is a national company with stores in many states, including Minnesota. Its headquarters are in Kentucky, it is part of a Delaware corporation based in Colorado, and the ladder in question was manufactured in Missouri.

There is no ideal forum. Minnesota has a legitimate tie to this case, and it was an abuse of discretion for the district court to dismiss Danielson’s claim on the ground of forum non conveniens.

DECISION

We reverse the grant of summary judgment in favor of Camping World and remand for further proceedings. Minnesota’s six-year statute of limitations applies to Danielson’s claim both under the traditional rule that would treat the choice of law determination as procedural and under the better approach that would determine the statute of limitations by analysis of choice-influencing considerations. It was an abuse of discretion to dismiss Daniel-son’s case for forum non conveniens.

Reversed and remanded.

      . The Davis court also cited Cuthbertson v. Uhley, a federal case, for the proposition that the law of the forum governs procedural issues and noted that though Cuthbertson was not precedential, it was "undoubtedly correct.” Id. at 152 (citing Cuthbertson v. Uhley, 509 F.2d 225 (8th Cir.1975)). In addition to finding that the procedural law of the forum applies, Cuthbertson also specifically found that statutes of limitation are procedural in Minnesota. Cuthbertson, 509 F.2d at 226. Cuthbertson was decided after Myers, but it made no mention of Myers or of the modern approach taken in Myers. Id.

        . Even under this traditional approach, there are exceptions to the rule that statutes of limitation are always procedural. A limitation period is substantive when it applies to a right created by statute, as opposed to a right recognized at common law. Fredin v. Sharp, 176 F.R.D. 304, 308-09 (D.Minn.1997) (citing In re Daniel's Estate, 208 Minn. at 430, 294 N.W. at 470). Where the limitation period is from the statute creating the right, the limitation period is a condition of the right rather than as an actual statute of limitations. Id. The limitations period here is the statute of limitations for general tort actions; it is not a limitation period from a specific statute that creates appellant's right to sue. Accordingly, this exception does not apply.

      . We note that a Minnesota claimant may postpone commencing a lawsuit assuming the Minnesota six-year statute of limitations applies and then discover to his surprise that a shorter statute of another state bars his action. This may have occurred in Danielson’s case. However, this "predictability” factor is generally understood to apply to expectations prior to the injury, not to expectations occurring later. See Medtronic, 630 N.W.2d at 454 (noting that the predictability factor applies primarily when parties desire "advance notice of which state law will govern in future disputes” (emphasis added)).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    James Donald JUELICH, Appellant, v. YAMAZAKI MAZAK OPTONICS CORPORATION, a/k/a Yamazaki Mazak Minokamo Corporation, Respondent, Mazak Nissho Iwai Corporation, Respondent, Gladwin Machinery & Supply Co., Defendant, Meikikou Corporation, Respondent, and Meikikou Corporation, Third Party Plaintiff, v. Aries Precision Sheet Metal Company, Third Party Defendant, and James Donald Juelich, Plaintiff, v. Yamazaki Mazak Optonics Corporation, a/k/a Yamazaki Mazak Minokamo Corporation, et al., Appellants, Gladwin Machinery & Supply Company, Defendant, Meikikou Corporation, Respondent, and Meikikou Corporation, third party plaintiff, Respondent, v. Aries Precision Sheet Metal Company, Third Party Defendant.
    Nos. A03-174, A03-228.
    Court of Appeals of Minnesota.
    Oct. 14, 2003.

      Cory P. Whalen, Sieben, Grose, Von Holtum & Carey, Ltd., and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, MN, for appellant James Juelich.
    Robert D. Brownson, Kristi K. Warner, Brownson & Ballou P.L.L.P., Minneapolis, MN, for respondent Meikikou Corporation.
    Carl Paul Carver, Kevin P. Curry, Bowman and Brooke, L.L.P., Minneapolis, MN, for appellant Mazak Nissho Iwai Corporation.
    Blake W. Duerre, Anton J. van der Mer-we, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, MN, for appellant Yamazaki Mazak Optonics Corporation.
    Considered and decided by WILLIS, Presiding Judge; TOUSSAINT, Chief Judge; and SHUMAKER, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant James Juelich, a Minnesota resident, was injured by a seissor-lift table manufactured by respondent Meikikou. Juelich sued Meikikou, appellant Yama-zaki, the manufacturer of a component of the table, and appellant Mazak Corporation, an international distributor. The district court dismissed respondent Meikikou for lack of personal jurisdiction, and appellants challenge the dismissal in consolidated appeals. Because the district court did not err in concluding that there were insufficient contacts for personal jurisdiction and that respondent had not consented to personal jurisdiction by its actions in bringing a third-party lawsuit and engaging in cross-claims, we affirm.

FACTS

After a January 25, 2001 work-related injury, appellant James Juelich commenced this personal injury and products liability action in district court. Respondent Meikikou Corporation was first named in and served with the second amended complaint in June 2001.

Juelich’s injury arose from his maintenance work on a seissor-lift table, which collapsed on his arm. The table was manufactured by respondent Meikikou Corporation, a foreign corporation with its principal place of business in Japan. The table was a component part of a Super Turbo X510 system that also included a laser-cutting machine manufactured by respondent Yamazaki Mazak Optonics Corporation (YMO), a Japanese corporation doing business in Japan. Respondent Mazak Nissho Iwai (MANI), an Illinois corporation, is the international distributor of the system purchased by Aries Precision Sheet Metal Company, a Minnesota corporation and Juelich’s employer. The Minnesota supplier of the system, Gladwin Machinery & Supply Company, was dismissed from the suit by agreement of the parties.

On July 6, 2001, Meikikou answered the complaint and asserted lack of personal jurisdiction as an affirmative defense. It then served a cross-claim against Gladwin and a third-party claim against Aries and signed a stipulation allowing cross-claims among Meikikou, YMO, and MANI. Beginning October 30, 2001, Meikikou also commenced discovery, serving requests and responses.

On June 24, 2002, Meikikou moved for dismissal based on lack of personal jurisdiction. Juelich, YMO, and MANI opposed the motion to dismiss, which was heard, along with Juelich’s motion to compel Meikikou to produce discovery, on September 26, 2002. In its October 1, 2002 order, the district court ordered Meikikou to completely answer discovery requests and to. produce for deposition Meikikou representatives, including Tsutomu Odagu-chi, its Managing Director and General Manager of Development.

After receiving letters and Odaguchi deposition excerpts submitted by Meikikou and YMO, the court granted Meikikou’s motion to dismiss on November 15, 2002 and subsequently entered judgment on February 4, 2003. Juelich, filed a notice of appeal, which was followed shortly thereafter by YMO and MANI’s joint appeals. The appeals were consolidated by this court.

The seissor-lift table involved in Jue-lich’s accident was manufactured by Meiki-kou at its factory in Japan in 1999. Meiki-kou sold the table to Ishihara Shoji, a Japanese distributor. On instruction from Shoji, Meikikou delivered the table to Seiko Keisakusho. Meikikou understood at all times that the table would eventually be delivered to YMO and that the table was a component part to the YMO Super Turbo X510 laser-cutting machine, loading system and unloading system.

YMO integrated the table into its laser-cutting machine and sold the system to MANI, the Illinois distributor. MANI then sold the system to Gladwin, MANI’s Minnesota distributor, which distributed it to Aries in St. Paul. YMO assembled its laser-cutting machine, but did not assemble the scissor-lift table. YMO did not provide any oral instructions or warnings to Juelich or Aries, but written warnings were provided on various machine labels and in the manuals. YMO provided a copy of an operation manual for the scissor-lift table to MANI, which supplied a copy to Aries. Neither Meikikou nor YMO provided post-sale or post-assembly inspection of the machine at Aries.

On July 8, 2000, Meikikou employees met with representatives of YMO and Ishi-hara Shoji in Japan to discuss, among other things, anticipated sales of the systems in the United States. Meikikou provided English warning labels for the tables, to be placed on the tables once they were installed in the YMO laser-cutting machine. Meikikou also provided an operation manual in Japanese that was to be used in preparing an English manual for the system. Meikikou was not involved in preparing the final manual that was provided with the system.

In October 2002, the court ordered Meikikou to produce for deposition Tsuto-mu Odaguchi. Odaguchi’s testimony was the primary source of facts concerning Meikikou’s manufacture of the scissor-lift table, Meikikou having previously provided only Odaguchi’s unauthenticated affidavit and interrogatory answers. He stated that Meikikou has no involvement with the scissor-lift tables once they are delivered to Seiko in Japan. Meikikou does not sell scissor-lifts to United States customers directly; YMO is its customer. Meikikou would sell its products to Japanese companies, some of which would put the products in their overseas production.

Odaguchi also clarified that Meikikou produced English-language manuals for Japanese customers and English warning signs. If YMO alerted Meikikou that they would sell the product in another country, Meikikou would follow YMO’s instructions to install safety valves or comply with other specifications particular to the product’s destination.

MANI explained that it obtained the system used by Juelich about May 1999. MANI did not sell the scissor-lift table separately from the laser-cutting machine and considered it a part of the system. A MANI representative, in fact, was unaware that Meikikou was the manufacturer of the scissor-lift table. MANI sold the system to Gladwin in December 1999, and, on Gladwin’s behalf, MANI shipped the items to Aries on March 27, 2000. MANI received the table as a completed unit from YMO. MANI did not assemble the table but positioned it and connected it to the system. MANI’s service technician installed the equipment at Aries and trained Juelich and another employee.

MANI, as distributor of the system, has sent out safety notices relevant to the table. Its vice-president compiled a list of 122 locations, including 17 Minnesota locations, of the systems. On the request of YMO and Meikikou, MANI provided stoppers to Aries on about June 18, 2001. Stoppers were manufactured by Meikikou and used to hold the table during maintenance. No stoppers were provided with the table at the time it was purchased by MANI and resold to Gladwin.

Meikikou maintains a website that emphasizes Meikikou as a world player in the scissor-lift table field. Meikikou holds itself out as keeping the “richest assortment of world-speeification-standardized hardware.” The English language website sets out Meikikou’s domestic and international associated companies, including four in the United States. It targets “you who use our product” and states that its scissor-lifts “are one of the best industrial devices used to carry load works vertically in the world.”

ISSUE

1. Did the district court err in concluding that Meikikou had not waived its jurisdictional defense?

2. Did the district court err in granting respondent Meikikou’s motion to dismiss for lack of personal jurisdiction?

ANALYSIS

I.

Juelich contends that Meikikou consented to the district court’s jurisdiction by filing a cross-claim against Gladwin and a third-party claim against Aries, stipulating to allowing cross-claims among YMO, MANI, and itself, and delaying its motion for dismissal until over one year after the action was commenced.

Generally, a defendant submits to the court’s jurisdiction only by taking some affirmative step invoking the power of the court or implicitly recognizing its jurisdiction. 1 David F. Herr & Roger S. Haydock, Minnesota Practice § 12.17, at 346 (2002) (citing Peterson v. Eishen, 512 N.W.2d 338 (Minn.1994)). A defendant’s actions can waive a jurisdictional defense even though it has properly raised the defense in its answer. Patterson v. Wu Family Corp., 608 N.W.2d 863, 868 (Minn.2000). Defendants must not only comply with the letter of the rules regarding preservation of defenses and waiver, but also with the spirit of the rules. Id.

Participation in the litigation standing alone does not constitute a waiver. Id. Conducting discovery does not effect a waiver, Johnson Bros. Corp. v. Arrowhead Co., 459 N.W.2d 160, 162 (Minn.App.1990); neither does asserting cross-claims or counterclaims, Federal-Hoffman, Inc. v. Fackler, 549 N.W.2d 93, 95 (Minn.App.1996). There is no Minnesota case law specifically addressing the effect of filing a third-party complaint on jurisdiction. Because Meikikou’s third-party complaint was contingent on the original action, seeking relief “in the event it is found hable” in the original action, however, there is no basis for treating it differently from cross-claims or counterclaims.

A defendant must act promptly to give the court an opportunity to rule on the merits of the defense. See Patterson, 608 N.W.2d at 868; see also Fackler, 549 N.W.2d at 95. Inaction coupled with discovery expenses could constitute waiver of the jurisdictional defense. Fackler, 549 N.W.2d at 96.

Meikikou did not appear as a named defendant until the second amended summons, which was served on Meikikou on June 18, 2001 in Japan. It then served its answer, including its affirmative defense of lack of personal jurisdiction, on July 6, 2001. Substantial discovery by all parties commenced in October 2001 and in November, Meikikou had filed a third-party complaint against Aries. Meikikou’s motion to dismiss for lack of personal jurisdiction was filed on June 24, 2002.

It appears that the only basis for waiver is the delay in Meikikou’s motion for dismissal. While the motion to dismiss was brought about one year after Meikikou raised the defense in its answer, the record reveals that discovery of jurisdictional facts was required before such a motion could be heard. Discovery did not begin until October 2001 and was complicated by numerous parties, claims, and actions. Although the delay in making the motion was due, in part, to Meikikou’s failure to produce discovery, Juelich did not file a motion to compel discovery until July 2002. In light of these facts, the district court did not err in rejecting the argument that Meikikou waived its defense of lack of personal jurisdiction.

II.

Juelich, YMO, and MANI contend that the facts show sufficient minimum contacts for the Minnesota district court to exercise personal jurisdiction over Meiki-kou. They argue that the district court ignored evidence of such contacts.

Determining whether personal jurisdiction exists is a question of law and this court need not defer to the trial court’s decision. Stanek v. A.P.I., Inc. 474 N.W.2d 829, 832 (Minn.App.1991), review denied (Minn. Oct. 31, 1991), cert. denied, 503 U.S. 977, 112 S.Ct. 1603, 118 L.Ed.2d 316 (1992). ‘When jurisdiction is challenged, the plaintiff bears the burden of proving that sufficient contacts exist with the forum state to support personal jurisdiction.” V.H. v. Estate of Birnbaum, 543 N.W.2d 649, 653 (Minn.1996).

A Minnesota court may exercise jurisdiction over a foreign corporation under the state’s long-arm statute. Minn. Stat. § 543.19, subd. 1 (2002). Here, as in many cases, there is no dispute that the long-arm statute is satisfied. The “real inquiry” is whether exercising personal jurisdiction meets constitutional muster. Bergherr v. Sommer, 523 N.W.2d 17, 20 (Minn.App.1994), review granted (Minn. Dec. 20, 1994) and appeal dismissed (Minn. Jan. 25, 1995). Five factors are applied to determine if a nonresident defendant has the minimum contacts necessary to require it to defend a lawsuit here. Nat’l City Bank v. Ceresota Mill Ltd. P’ship, 488 N.W.2d 248, 252-53 (Minn.1992). The first three factors are the most important: (1) quantity of contacts with the forum state; (2) nature and quality of the contacts; and (3) source and connection of the cause of action with these contacts. Id. at 253.

Even if a foreign corporation has no direct contacts with Minnesota, it may still be subject to the court’s personal jurisdiction under the stream-of-commerce theory. Rostad v. On-Deck, Inc., 372 N.W.2d 717, 720 (Minn.1985), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985). World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980), first articulated the theory allowing a state to exercise personal jurisdiction over a defendant with no direct contacts if that defendant “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. The Rostad court applied the theory to allow jurisdiction where only indirect contacts existed. 372 N.W.2d at 721.

Here, the district court noted that Meik-ikou had knowledge that the scissor-lift table would be integrated by YMO in the laser-cutting machine and sold overseas in the United States. The district court concluded that “the facts are unclear as to whether Meikikou had knowledge the scissor lift would be sold specifically in Minnesota. The facts also do not support any conduct on Meikikou’s part to target Minnesota with their product.”

The district court concluded that Asahi Metal Industry Co. v. Superior Ct. of Cal., 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), compelled granting Meikikou’s motion to dismiss. Asahi, a Japanese corporation, manufactured tire-valve assemblies in Japan and sold them to a Taiwanese company for use as components in finished tire tubes. The Taiwanese company then sold the finished tubes throughout the world and 20% of its sales were in California. Asahi was sued by an injured California motorcyclist claiming Asahi’s tire-valve assembly was faulty and caused his accident. Id. at 105-06, 107 S.Ct. at 1029.

In Asahi, the United States Supreme Court clarified the stream-of-commerce theory. It stated that “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id. at 112, 107 S.Ct. at 1032 (emphasis added). There must also be a showing of “additional conduct” of a defendant indicating an intent or purpose to serve the market in the forum state. It cited examples:

designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.

Id.

As the district court concluded, the facts show that Meikikou placed its product into the stream-of-commerce but do not show conduct “directed toward” or “in the forum state.” While Meikikou was aware that its table would eventually be part of a system destined for the United States, it took no part in the marketing or distribution of the product. Its business practice was to manufacture its product and place it in the stream-of-commerce in Japan. Upon instruction from its Japanese customer, YMO, Meikikou would comply with specifications required of different end-destinations, but Meikikou did not have “customers” in the United States. After Meikikou delivered its product to its Japanese distributor, it effectively disassociated itself from the product’s marketing and distribution. In fact, a MANI representative who had sold many systems over the years was unaware that Meikikou was the manufacturer of the table.

Only Meikikou’s English-language Internet site provides a contact that could be interpreted as an advertisement accessible to Minnesotans in Minnesota. The Internet site, however, was primarily a broad promotion of the company and general advertisement of its products. It did not provide an avenue for communicating with customers and did not target Minnesota. There also was no evidence of “hits” on the Internet site or successful Internet solicitations of Minnesota residents. In any event, jurisdiction cannot be based solely on the ability to access an Internet site, see GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1349-50 (D.C.Cir.2000), particularly when the cause of action is unrelated to the Internet site. Cf. State v. Granite Gate Resorts, 568 N.W.2d 715 (Minn.App.1997) (concluding that minimum contacts existed where Internet advertising involved multiple contacts with Minnesota residents on the Internet, including one successful solicitation, and cause of action arose from Internet connection), aff'd mem., 576 N.W.2d 747 (Minn.1998). While indirect contacts are sufficient for personal jurisdiction, Rostad v. On-Deck, Inc., 372 N.W.2d 717, 721 (Minn.1985) (noting distribution contracts and marketing efforts calculated to create a national market for the product), the nonresident defendant must have those contacts, not just the distributor. In re Minn. Asbestos Litig., 552 N.W.2d 242, 247 (Minn.1996); see also Welsh v. Takekawa Iron Works, Co., 529 N.W.2d 471, 474 (Minn.App.1995) (noting that jurisdiction may be proper where wide-scale marketing efforts or nationwide sales of commonly used products existed).

The absence of any contacts with Minnesota resolves the issue of personal jurisdiction under the due-process clause. Absent any contacts, none of the “most important” factors supports personal jurisdiction over Meikikou. While the number of scissor-lift tables in Minnesota is not insignificant, there is no evidence linking Meikikou to the Minnesota distributor, the Minnesota customers, or the product in Minnesota. See, e.g., Johnson Bros., 459 N.W.2d at 163 (concluding single phone call from Kansas supplier to Denver supplier did not constitute minimum contacts for personal jurisdiction over Denver company). Therefore, the district court properly dismissed Meik-ikou from the action.

III.

Appellants YMO and MANI also seek reversal due to the district court’s reliance on an unauthenticated affidavit. It is not clear from the record or the court’s decision that the court relied on the affidavit. The court decided the motion after the Odaguchi deposition excerpts were submitted to it, and the court’s findings supporting dismissal were based on the record.

DECISION

Because appellants have not shown that respondent Meikikou waived its jurisdictional defense or had sufficient minimum contacts with Minnesota to support the exercise of personal jurisdiction, the district court correctly dismissed Meikikou for lack of personal jurisdiction.

Affirmed.


author: HUDSON, Judge. RANDALL, Judge

text:
    Sharon Lynn BLACKWELL, Appellant, v. 2002 KIA 4 DOOR STL SEDAN with Vehicle Identification Number KNAFB121225129540, License Plate: JAR 987, Respondent.
    No. CX-03-395.
    Court of Appeals of Minnesota.
    Oct. 14, 2003.

      Thomas A. Volk, Chaska, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Antonio Tejeda, Timothy J. Si-monson, Jon C. Saunders, Anderson, Larson, Hanson & Saunders P.L.L.P., Will-mar, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge; HALBROOKS, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant challenges the forfeiture of her vehicle, arguing that her mother, who loaned appellant money to purchase the vehicle, has a bona fide security interest in the vehicle. Because the evidence does not support a conclusion that appellant’s mother has a bona fide security interest in appellant’s vehicle, we affirm.

FACTS

On July 1, 2002, appellant Sharon Lynn Blackwell was arrested for driving under the influence of alcohol. After her arrest, the state served appellant with a notice of intent to forfeit the 2002 Kia 4-door STL Sedan (“the car”) she was driving at the time, as mandated by Minn.Stat. § 169A.63, subd. 6 (2002). The statute provides that a “motor vehicle is subject to forfeiture ... if it was used in the commission of a designated offense.” A designated offense includes a violation of section 169A.20, the driving-while-impaired statute. Minn.Stat. § 169A.63, subd. 1(d)(1) (2002). Appellant filed a petition for judicial determination of forfeiture of motor vehicle under Minn.Stat. § 169A.63, subd. 8(f) (2002). Appellant claimed that the forfeiture of her vehicle was unlawful, or at least subject to a private security interest because appellant’s mother, Onetta Viera, had loaned appellant money to purchase the motor vehicle, but Viera had not been served with a notice of forfeiture.

Nevertheless, Viera learned of the impending forfeiture, and at a judicial review hearing Viera testified that she paid $9,500 toward the purchase price of the vehicle while appellant paid the remaining amount. Viera also testified that she and appellant orally agreed the money was a loan and that appellant would repay the loan at a 6% interest rate. Viera produced a copy of a payment schedule created from what appears to be an amortization schedule for mortgage payments that Viera obtained from the Internet. Also entered into evidence were four cancelled checks with Viera as the payee and signed by appellant. Each check noted on the memo line that it was payment for the car loan. Viera testified she was unaware that in order to perfect her interest in the vehicle, she was required to register that interest with the State of Minnesota. Because Vi-era’s name does not appear on the vehicle’s title, respondent did not know of her interest in it, and accordingly did not serve her with the notice of forfeiture.

Appellant was subsequently convicted of driving while impaired and first-degree driving while impaired. The district court upheld the forfeiture of appellant’s vehicle. The district court concluded that the forfeiture statute did not require that Viera be notified of the forfeiture because Vi-era’s name does not appear on the vehicle’s title. This appeal follows.

ISSUE

Does appellant’s mother have a bona fide security interest in the vehicle under Minn.Stat. § 169A.63, subd. 7, in the absence of any evidence that the motor vehicle was collateral for the loan?

ANALYSIS

Appellant argues that the district court misinterpreted the forfeiture statute and erroneously concluded that appellant’s mother does not have a bona fide security interest in appellant’s vehicle. We note that the district court did not explicitly rule that Viera does not have a security interest in appellant’s vehicle. But implicit in its conclusion that the state was not required to notify Viera of the forfeiture is a determination that Viera does not have a bona fide security interest in appellant’s vehicle. Significantly, neither party appeals the district court’s notice ruling. Thus, the sole issue before us is whether Viera has a bona fide security interest in appellant’s vehicle within the meaning of the forfeiture statute, thereby precluding seizure of the vehicle by the state.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). When reviewing a district court’s findings of fact, this court may not set such findings aside unless they are clearly erroneous. Rife v. One 1987 Chevrolet Cavalier, 485 N.W.2d 318, 321 (Minn.App.1992), review denied (Minn. June 30, 1992). This court independently reviews the application of law to a given set of facts. A.J. Chromy Constr. Co. v. Commercial Mech. Servs., Inc., 260 N.W.2d 579, 582 (Minn.1977).

A vehicle is subject to forfeiture if the driver is convicted of the designated offense on which the forfeiture is based. Minn.Stat. § 169A.63, subd. 7(a)(1) (2002). “A vehicle encumbered by a bona fide security interest ... is subject to the interest of the secured party ... unless the party ... had knowledge of or consented to the act upon which the forfeiture is based.” Minn.Stat. § 169A.63, subd. 7(b) (2002). Appellant was convicted of driving while impaired and second-degree driving while impaired, and therefore her vehicle was clearly subject to forfeiture. It is less clear whether Viera has a bona fide security interest in the vehicle. To answer that question, we are guided by our recent decision in Stanton v. Mazda 2001, 660 N.W.2d 137 (Minn.App.2003).

In Stanton, granddaughter was stopped and arrested for driving under the influence of alcohol, which represented her third such violation in ten years. Stanton, 660 N.W.2d at 138. Granddaughter was served with a notice of intent to forfeit the Mazda that she was driving at the time, as mandated by section 169A.63, subd. 6. Id. Stanton filed a petition for judicial determination of forfeiture, claiming she had a bona fide security interest in the vehicle. Id. at 139. Stanton had co-signed the automobile loan for her granddaughter, and the loan was guaranteed by Stanton’s savings account. Id. at 138.

We concluded that a bona fide security interest in a vehicle under section 169A.63, subdivision 7, does not require that the interest be “perfected” pursuant to Minn. Stat. § 168A.17 (2002). Id. at 140. We reasoned that section 169A.63, subdivision 7, only mandates that there be a “bona fide security interest,” not a “perfected security interest” or even a “security interest.” Id. at 139-40. We noted that the plain meaning of the phrase “bona fide,” as defined by this court, means “made in good faith without fraud or deceit,” or “in or with good faith; honestly, openly, and sincerely ... real, actual, genuine, and not feigned.” Id. at 139 (quoting Rogers v. Ponti-Peterson Post No. 1720, 495 N.W.2d 897, 901 (Minn.App.1993) (citations omitted)). We concluded that Stanton had a bona fide security interest in the Mazda because the granddaughter had sent Stanton a letter confirming that it was collateral for the loan. Id. at 139. We also noted that Stanton had presented an affidavit in which she stated that the Mazda was collateral for the granddaughter’s loan thus showing that Stanton had a bona fide security interest in it. Id.

Appellant argues that the facts here are similar to those in Stanton, and establish that Viera has a bona fide security in appellant’s vehicle. Appellant contends that Viera’s testimony at the hearing as to her interest in the vehicle, the payment schedule, and the cancelled checks evidencing appellant’s repayment of the loan, establishes Viera’s interest in the car. The state counters that Viera does not have a security interest in appellant’s vehicle because a security interest in another’s property requires a security agreement, and there is no security agreement in this case. The state relies on the definitions of a “security agreement,” a “security interest,” and a “secured party” in Chapter 168A.

But the state’s attempt to link the forfeiture statute with chapter 168A (Motor Vehicle Titles) is exactly the approach we rejected in Stanton. We reasoned in Stanton that the forfeiture statute provides for an interest in a vehicle even if the security interest is not perfected in accordance with section 168A.17. In so concluding, we noted that by using the phrase “bona fide,” the legislature intended that something less than a perfected security interest would suffice under the forfeiture statute. Stanton, 660 N.W.2d at 140. Therefore, it follows that under Stanton, a bona fide security interest under the forfeiture statute can exist in absence of an actual security agreement. Further, Stanton makes clear that a security interest, within the meaning of the forfeiture statute, is determined by the facts presented in each case and not by statutory requirements or definitions.

The state also contends that the facts in this case do not support a conclusion that Viera has a bona fide security interest in the car. The state argues that, unlike Stanton, Viera did not guarantee the loan with her savings account; the appellant did not write a letter pledging the motor vehicle as collateral for the loan; and neither party presented any evidence that appellant’s vehicle served as collateral for the loan. We find the state’s position here persuasive.

The district court was presented with an amortization schedule of payments that does not indicate what the payments are for, who is responsible for making the payments, or to whom the payments should be made. Viera testified that she loaned appellant $9,500 to purchase a vehicle. In the record are cancelled checks naming Viera as payee in the amount that appears in the monthly payment schedule. It is reasonably clear that the payment schedule relates to appellant’s repayment of the $9,500 loan made by Viera. But our analysis does not end here, because we must still decide whether this evidence establishes that Viera has a bona fide security interest in appellant’s vehicle. We conclude that it does not.

In Stanton, we defined the phrase “bona fide” as “made in good faith without fraud or deceit.” But we tied “good faith” to the clear evidence in that case that the vehicle served as collateral for the loan. In addition to the fact that Stanton co-signed the installment loan, the granddaughter sent Stanton a letter confirming that the vehicle was collateral for the loan. Stanton, 660 N.W.2d at 139. Stanton also presented an affidavit in which she stated that the vehicle was collateral for the granddaughter’s loan, thus demonstrating that Stanton had a bona fide security interest in the vehicle. Id.

Here, no such documentation exists. The payment schedule and cancelled checks connect Viera to the loan, but not to the car. We cannot reasonably infer from this evidence that the car served as collateral for the loan, and that in the event of default by appellant, Viera was entitled to possession. Viera certainly has an interest in repayment of the loan made to appellant for the vehicle’s purchase, but we hold that the evidence is insufficient to support a conclusion that Viera has a bona fide security interest in appellant’s vehicle. We acknowledge that there was nothing fraudulent about Viera’s loan to appellant and that our holding today is a harsh result. But to hold otherwise would unwisely expand Stanton — something we decline to do where neither Viera nor appellant took any steps to pledge the motor vehicle as collateral for the loan, thus demonstrating a secured interest in the motor vehicle.

DECISION

In the absence of any evidence that appellant’s vehicle served as collateral for the loan, appellant’s mother did not have a bona fide security interest in the 2002 Kia.

Affirmed.

RANDALL, Judge

(dissenting).

I respectfully dissent. On these facts, this case should be reversed outright and a bona fide security interest declared in appellant’s mother, Onetta Viera. This case, as the majority agrees, is governed by Stanton v. Mazda 2001, 660 N.W.2d 137 (Minn.App.2003). In Stanto n, her granddaughter was arrested for DUI and served with a notice of intent to forfeit her vehicle, a 2001 Mazda. That is the same as our facts, only we are dealing with Viera’s daughter, Sharon Blackwell, rather than a granddaughter. In Stanton, Stanton appeared by an affidavit, stating that the Mazda was collateral for her granddaughter’s loan. Stanton also had evidence that she had guaranteed her granddaughter’s loan with her savings account and she had a letter from her granddaughter pledging the Mazda as collateral.

In this case, the district court had as unchallenged evidence, an amortization schedule of payments that as to amounts and dates and times exactly correlated with Viera’s in-court testimony that she loaned Blackwell $9,500 to purchase the 2002 Kia. (Oral argument revealed that the total purchase price was between $11,000 and $12,000.) In the record are cancelled checks naming Viera as payee in the exact amount needed to comply with the monthly payment schedule (five years/60 months). Blackwell’s checks to her mother were numbered one through four with each check noting that it was a payment for the car loan. Appellant’s counsel claims that these facts are even stronger than the facts in Stanton. I do not know if that is the case. But I can only observe that the undisputed facts in Stanton and in this case do not show a dime’s worth of difference in terms of documentation of record to support an unperfected bona fide security interest.

The district judge did not have the benefit of Stanton, so the trial judge went off on a non sequitur, as the majority acknowledges. The trial judge opined that since this was an unperfected security agreement and, therefore, no formal notice was sent to Onetta Viera, that Onetta Vi-era’s claim must fail for that reason.

In its “Findings of Fact, Conclusions of Law, Order and Judgment,” the district court stated in Findings of Fact VI, “Ms. Viera was not served with notice of this proceeding.” The court then went on in its Conclusion of Law No. 4 to state,

“For those vehicles required to be registered under chapter 168, the notification to a person known to have a security interest in the vehicle is required only if the vehicle is registered under chapter 168 and the interest is listed on the vehicle’s title.” Minn.Stat. § 169A.63, subd. 8(b). Thus, the requirements of the notification statute have been satisfied because Onetta Viera’s claim to the car in question does not appear on the car’s title.

The court used this as a basis to deny Viera’s claim.

The issue of lack of notice to Mrs. Viera is a nonissue. Neither party raised it, and both parties at the oral hearing agreed that notice was not an issue. Appellant did not argue that his client had improperly not been sent a notice of the hearing (she learned about it in another way and made an appearance and was allowed by the court to give her full testimony) and respondent does not argue that since she did not get a formal notice, she is estopped from presenting a claim. Rather, after agreeing that lack of notice was not an issue, both sides simply argued the merits.

The majority concedes that the district court missed the whole point of Stanton and points out that the state’s attempt to link the forfeiture statute with chapter 168A “is exactly the approach we rejected in Stanton.” The majority acknowledges that under Stanton you need only a bona fide security interest, not a perfected security interest or even a “security interest.” It simply has to be “in good faith.” The majority attempts to distinguish Stanton and deprive Viera of her security interest, arguing that in Stanton, there was a letter and an affidavit both indicating that the word “collateral” was used, whereas on our facts, although the written documentation points exactly to a car loan (and the state does not challenge that), the magic words “collateral” do not appear in the Blackwell/Viera documents. It is true that if Blackwell and Viera had had an attorney draft the car loan, all the right buzz words would likely have been used; the loan documents might even have been recorded, thus, making this entire case moot. But this court wrote Stanton for exactly that reason! There are times when close friends and family members loan each other money for vehicles and Stanton made it clear that you don’t need any particular magic words or any particular recording or any particular essential document; rather the package of evidence needs only to indicate a good faith security interest — and as stated, something less than a perfected security interest.

To accept the majority’s reasoning, the following hypothetical has to be assumed. After making her four payments religiously, and noting on each check either “car payment” or “car note,” first, second, third, and fourth, Blackwell gets tired of the car and sells it to someone for about what she paid for it, meaning several hundred dollars over the $8,951 balance she owed her mother, Mrs. Viera. Blackwell keeps the entire purchase price and goes to her mother and says, “Gee, Mom, I sold my Kia for $11,000. I am going to keep the entire amount and not pay you off. The way I see it, you just made me a personal loan totally unrelated to the car. We never had any understanding that the car was collateral for what I owe you. I will simply string out the balance for another 46 months at the amortization schedule rate of $183 per month.”

Onetta Viera says, “You know, daughter, come to think of it, you are right. Even though you put car payment number 1, number 2, number 3, and number 4 on the first four $183 checks, and that is exactly the payment schedule we agreed upon, it really never was our intent that the car was to be collateral, and I just meant to give you an out-of-pocket loan for your own personal use for the next five years. So you go ahead and keep the money, and just string out the payments over the next four years and eight months.”

Unless you believe that was really the intent of Blackwell and Viera, you cannot distinguish this case from Stanton. The Stanton explanation of the term “bona fide” carries the not indirect, but direct implication that buzz words and magic words are not needed as long as the totality of the evidence points to a bona fide interest.

Part of appellant’s evidence of record, copies of the four cancelled checks, are telling. They make it undisputedly clear that Viera’s loan to Blackwell was not just a generic personal loan, but was a loan for the car.

The check ($183) dated March 19, 2002 has written on it, “# 1 car payment;” the check ($184) dated May 13, 2002 has written on it, “2nd car note;” the check ($208) dated June 10, 2002 has written on it “car note — cash;” and the check (183) dated July 15, 2002 has written on it “4th car payment.”

Some time prior to June 10, Blackwell had borrowed $25 from her mother and used the third check to pay that $25 personal loan back plus a regular $183 car payment. She was careful to put on the memo portion of the check, “car note— cash.” If this was really just a personal loan and not tied to the car, why did Blackwell make it a point to spell out both “car note” and “cash” when she deviated upward from the payment schedule in the amount of $25?

The majority states that the result is “harsh.” I agree! Then why are we going against the rules of law surrounding forfeitures and penal statutes? The law is settled that penal statutes are construed strictly against the state and in favor of the defendant. See State v. Serstock, 402 N.W.2d 514, 516 (Minn.1987) (citation omitted) (stating that where doubt exists as to legislative intent of a penal statute, doubt must be resolved in favor of the defendant). With the government getting completely out of hand on forfeitures several years ago, the United Stated Supreme Court stepped in and starting with Austin v. U.S., 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) pointed out that excessive “civil forfeitures” can and will run afoul of the U.S. Constitution when the government gets greedy. The case expressly pointed out that the Eighth Amendment is not limited to criminal cases. Austin, 509 U.S. at 602, 113 S.Ct. at 2802. In addition to that law, this punishment by forfeiture goes not against Stanton, admittedly guilty of DUI, but against an innocent third party, her mother. Viera stands in the same shoes as any bona fide lender, e.g., a bank or GMAC. They have no control over the driver’s actions and no responsibility for the driver’s actions. There is already sufficient punishment laid on Blackwell because she will lose her own equity in the car in addition to being subject to the severe penalties for multiple DUIs.

In sum, we are today artificially narrowing our own case, Stanton v. Mazda, the only precedent out there, and we are artificially limiting Stanton, not to help somebody, but to affect a harsh forfeiture on an innocent third party. This is all done in the face of the rule that penal statutes are to be construed strictly against the state and in favor of the defendant. This is not a good result. We are going against the law and the facts to visit a harsh result on an innocent third party — why? We are doing it in a case where the district court did not have the benefit of Stanton and so decided the case against Blackwell on a nonissue, the lack of entitlement by Onetta Viera to a formal written notice.

I dissent, and would reverse outright in favor of Blackwell so that Viera’s unpaid car loan is recognized and the only forfeiture is Blackwell’s equity. At a minimum, I would reverse and remand to the district court to reconsider the facts and the law in light of our holding in Stanton.

      . Minn.Stat. § 168A.17, subd. 1 (2002), provides, "a security interest in a vehicle of a type for which a certificate of title is required is not valid against creditors of the owner or subsequent transferees or secured parties of the vehicle unless perfected....”

      . The district court did not address whether Viera had a bona fide security interest under Stanton; basing its holding instead on the fact that respondent had no statutory obligation to notify Viera of the forfeiture proceeding because Viera’s interest was not registered pursuant to Minn.Stat. Ch. 168. We will not, however, reverse on appeal a correct decision simply because it is based on incorrect reasons. Wolf Motor Co. v. One 2000 Ford F-350, 658 N.W.2d 900, 903 n. 3 (Minn.App.2003); Katz v. Katz, 408 N.W.2d 835, 839 (Minn.1987).


author: ZINTER, Justice.

text:
    2003 SD 109
    In re Appeal from Decision of YANKTON COUNTY COMMISSION on, June 25, 2002, Denying the Appeal of Guy Larson, an Aggrieved Person, and Concerning the Issuance of a Building Permit to Larry Ryken, Permit Number 22A, Issued on April 19, 2002.
    Nos. 22681, 22692.
    Supreme Court of South Dakota.
    Argued May 30, 2003.
    Decided Sept. 10, 2003.
    Nora M. Kane, David A. Domina of Do-mina Law, Omaha, Nebraska, James G. Abourezk, Sioux Falls, South Dakota, Attorneys for appellant Yankton Land & Cattle Co.
    Robert L. Chavis, Yankton County State’s Attorney, Yankton, South Dakota, Attorneys for appellee Guy Larson, et al.
   ZINTER, Justice.

[¶ 1.] Larry Ryken, owner of a feedlot and sale barn, applied for a building permit after Yankton County had adopted a temporary zoning ordinance (TZO). Although the permit was granted, Guy Larson, a local taxpayer, unsuccessfully appealed to the Yankton County Board of Adjustment. Larson did not, however, appeal the Board of Adjustment’s decision to circuit court in accordance with SDCL 11-2-61 (2000). Instead, he appealed the Board of Adjustment decision to the Yank-ton County Commission under section 1903 of the TZO. After also losing his appeal with the County Commission, Larson and several other taxpayers (collectively referred to as Taxpayers) successfully petitioned the Yankton County State’s Attorney to appeal the County Commissioners’ decision to circuit court. The State’s Attorney appealed under SDCL 7-8-28, a non-zoning statute allowing appeals of county commission decisions that are of general interest to the public. The circuit court assumed jurisdiction and affirmed issuance of the permit on certain eondi-tions. Ryken’s successor in interest (YLC), the State’s Attorney, and Taxpayers all appeal to this Court raising various issues. Because we hold that the statutory method of appealing a Board of Adjustment decision in SDCL 11-2-61 preempted the County Commission review under section 1903 of the TZO, we only address the jurisdictional issue. On that issue we hold that because the appeal taken to the County Commission under the TZO was preempted, there was no permit decision before the County Commission that could be appealed to circuit court under SDCL 7-8-28. We further hold that because Taxpayers did not take an appeal from the Board of Adjustment to circuit court as directed by SDCL 11-2-61, the circuit court lacked jurisdiction. We therefore reverse.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Ryken owned the Yankton Livestock Market since 1978. The facility was used as a salebarn and feedlot for cattle and horses owned by Ryken and his customers. In December 2002, Yankton County adopted the TZO. Under the TZO, Ryken’s facility was a nonconforming use. However, because Ryken’s facility was in existence at the time the TZO was enacted, his nonconforming use was “grandfathered.”

[¶ 3.] At some point in these proceedings, the South Dakota Department of Environment and Natural Resources (DENR) determined that the facility’s animal waste system did not comply with new state and federal regulations. Ryken’s existing holding ponds only had a capacity of 60 to 90 days. The new regulations required Ryken to develop holding ponds that could contain 365 days of waste and storm water runoff in a “zero discharge system.” Because of these new requirements, Ryken hired an engineering firm to prepare a plan to bring the facility into compliance. After the engineers completed their plans for the holding pond improvements, Ryken applied to Tom Fiedler, the Yankton County Zoning Administrator, for the necessary building permit.

[¶4.] Because the TZO was new and the permit was controversial, Fiedler asked the Yankton County Commissioners and other zoning officials for guidance. On April 16, 2002, the Yankton County Planning Commission and the Yankton County Board of Commissioners, the latter acting as the Yankton County Board of Adjustment, conducted a joint meeting to discuss the permit. Following the meeting, the Planning Commission and the Board of Adjustment “recommended” that Fiedler issue the building permit subject to a number of conditions that are not relevant to this appeal. On April 19, 2002, Fiedler issued the building permit subject to those conditions.

[¶ 5.] Larson subsequently appealed the Zoning Administrator’s decision to the Planning Commission. When that appeal was denied, Larson appealed to the Board of Adjustment. That appeal was also denied. However, Larson failed to appeal the Board of Adjustment’s decision to circuit court in accordance with SDCL 11-2-61. Instead, Larson appealed from the Board of Adjustment to the County Commission under section 1903 of the TZO. The County Commission subsequently heard the appeal and affirmed the Board of Adjustment’s decision.

[¶ 6.] One day later, Taxpayers petitioned the Yankton County State’s Attorney to file a “taxpayer appeal” under SDCL 7-8-28 from the County Commissioners’ decision affirming the Board of Adjustment. The State’s Attorney filed that appeal in circuit court together with an application for a temporary injunction and, in the alternative, a request for a stay. A hearing was held in circuit court the day after the appeal was filed. The circuit court denied the request for an injunction and the stay, and it scheduled a trial.

[¶ 7.] In September 2002, the circuit court conducted a two-day trial on the taxpayer appeal. The circuit court heard testimony concerning the historical use of the facility. After trial, the circuit court affirmed the County Commission, but concluded that the permit should have expressly limited the future use of the facility to its “historical use.” The circuit court remanded the matter with orders that the permit limit the use of the property to “6,006 head (animal units) in the indoor livestock auction barn and 2,500 head of feeder cattle (animal units) in the outdoor livestock feeding pens.” The court further ordered the permit to indicate “that no expansion of the prior nonconforming use is being permitted.”

[¶ 8.] YLC appeals the circuit court’s decision, raising three issues. By notice of review, Taxpayers raise three additional issues. Because we conclude that the jurisdictional issue concerning the method of appeal is dispositive, we only consider:

Whether the circuit court had jurisdiction to hear the appeal.

STANDARD OF REVIEW

[¶ 9.] Subject matter jurisdiction to conduct an appeal from a county commission decision presents a question of law. In re Estate of Gatada, 1999 SD 21, ¶ 8, 589 N.W.2d 221, 222-23 (citing Kroupa v. Kroupa, 1998 SD 4, ¶ 10, 574 N.W.2d 208, 210). “Accordingly, [that issue is] fully reviewable and we afford no deference to the conclusions reached by the trial court.” Id. Furthermore, to resolve this case we must engage in statutory interpretation. “We review statutory interpretation de novo.” Maas v. Department of Commerce and Regulation, 2003 SD 48, ¶ 8, 661 N.W.2d 726, 730 (further citations omitted).

DECISION

[¶ 10.] The trial court lacked jurisdiction to hear the appeal.

[¶ 11.] Larson started the appellate process that led to this circuit court appeal. He appealed from the local Zoning Administrator to the Planning Commission, from the Planning Commission to the Board of Adjustment, and from the Board of Adjustment to the Yankton County Commission. These appeals were taken pursuant to section 1903 of the TZO, which provided that the County Commission had the power to review local zoning decisions. It provided:

The County Commission shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Administrator, Planning Commission, or Board of Adjustment based on or made in the enforcement of any zoning regulation or any regulation relating to the location or soundness of structures or to interpret any map.

Id. (emphasis added).

[¶ 12.] After the County Commission affirmed the Board of Adjustment’s decision, Taxpayers, through the State’s Attorney, appealed the County Commissioner’s decision to circuit court under SDCL 7-8-28. Under that statute, a State’s Attorney is authorized to appeal a decision of the county commissioners upon demand of at least fifteen taxpayers if a commission decision “relates to the interests or affairs of the county at large or any portion thereof.” Id.

[¶ 13.] YLC does not dispute that SDCL 7-8-28 permits general interest appeals to circuit court from county commission decisions. YLC, however, contends such appeals are allowed only if the decision being reviewed was properly before a county commission. In this case, YLC argues that the Board of Adjustment decision was not properly before the County Commission. YLC contends Taxpayers had no right to appeal the Board of Adjustment’s decision to the County Commission because SDCL 11-2-61 preempted section 1903 of the TZO. That statute, as it existed at the time of the Board of Adjustment appeal (May 29, 2002), only allowed an appeal to circuit court from a board of adjustment decision. It did not permit an appeal to a county commission. SDCL 11-2-61 (2000) provided:

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.

Id. (emphasis added). Because this statute did not allow an appeal from the Board of Adjustment to the County Commission, YLC argues that the circuit court did not have jurisdiction under SDCL 7-8-28 to review the decision of the County Commission.

[¶ 14.] SDCL 11-2-61 and section 1903 of the TZO both provide for an appeal from a board of adjustment. Therefore, we must first determine whether the TZO was preempted by the statute. YLC relies upon Rantapaa v. Black Hills Chair Lift Co., 2001 SD 111, ¶ 23, 633 N.W.2d 196, 203, to support its argument that the “Legislature [through SDCL 11-2-61] intended to fully occupy or preempt the area of appeals from [b]oards of [adjustment, thereby preempting or abrogating [a] conflicting local ordinance.”

[¶ 15.] Rantapaa discussed three ways in which statutes may preempt local ordinances.

There are several ways in which a local ordinance may conflict with state law. In that event, state law preempts or abrogates the conflicting local law. First, an ordinance may prohibit an act which is forbidden by state law and, in that event, the ordinance is void to the extent it duplicates state law. Second, a conflict may exist between state law and an ordinance because one prohibits what the other allows. And, third, state law may occupy a particular field to the exclusion of all local regulation.

Id. (internal citations omitted). The first two preemptive rules are not applicable in this case. Under the third rule, we must determine whether the Legislature intended to occupy the field of zoning decision appeals to the exclusion of local ordinances when it enacted SDCL 11-2-61 (2000). If it so intended, section 1903 of the TZO was preempted, and the appeal from the Board of Adjustment was not properly before the County Commission.

[¶ 16.] In analyzing the preemption issue, we begin by noting that state preemption of county ordinances is analogous to federal preemption of state law. Therefore, the United States Supreme Court’s preemption analysis provides guidance. In looking at preemption, the Supreme Court has explained that Congress has “completely occupied the field” when it “may be inferred [that] the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985) (further citations omitted). We must therefore consider whether the Legislature’s regulation of local zoning appeals in SDCL ch. 11-2 was sufficiently comprehensive to leave no room for supplementary county regulation of board of adjustment appeals.

[¶ 17.] In considering that question, we first note that the 2000 Legislature significantly changed its regulation of local zoning. Before the 2000 changes in SDCL ch 11-2, “county commissions [were given] wide discretion in the area of zoning” by SDCL 11-2-36 (repealed, SL 2000, ch. 69, § 43). See generally Ridley v. Lawrence County Comm’n, 2000 SD 143, ¶ 9, 619 N.W.2d 254, 258. Moreover, the Legislature specifically directed that the decisions of boards of adjustment were “subject to appropriate conditions or safeguards being adopted by the [county commission].” SDCL 11-2-25.1 (repealed, SL 2000 ch. 69 § 18). Finally, before the 2000 changes, there was no statute in SDCL ch 11-2 restricting that authority by directing the method of taking an appeal from a board of adjustment. Therefore, before the 2000 enactments, there was room for county regulation of appeals from boards of adjustment. In fact, there was statutory authority for counties to adopt ordinances allowing county commission review of board of adjustment decisions. SDCL 11-2-25.1 (repealed).

[¶ 18.] However, the 2000 Legislature repealed those provisions and enacted a comprehensive statutory zoning scheme, which among other things, directed the method of appealing board of adjustment decisions. Unlike the prior version of SDCL ch 11-2 that left the method of appealing board of adjustment decisions to the counties, a detailed statutory procedure for appealing from a board of adjustment was enacted. SDCL §§ 11-2-61 to 65 (2000) provided:

SDCL 11-2-61:
Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.
SDCL 11-2-62:
Upon the presentation of the petition, the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board of adjustment and shall prescribe the time within which a return must be made and served upon the realtor’s attorney, which may not be less than ten days and may be extended by the court. The allowance of the writ does not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board of adjustment and on due cause shown, grant a restraining order.
SDCL 11-2-63:
The board of adjustment is not required to return the original papers acted upon by it, but it is sufficient to return certified copies of the papers, or of such portions of the papers as may be called for by the writ. The return shall concisely set forth such other facts pertinent and material to show the grounds of the decision appealed from and shall be verified.
SDCL 11-2-64:
If upon the hearing it appears to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take such evidence as it may direct and report the evidence to the court with the referee’s findings of fact and conclusions of law, which constitute a part of the proceedings upon which the determination of the court is made.
SDCL 11-2-65:
The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
Costs are not allowed against the board of adjustment unless the court determines that the board of adjustment acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.

(Emphasis added.) We believe that the repeal of the prior statutes and the enactment of this new comprehensive appellate scheme expressed legislative intent to completely occupy the field of taking board of adjustment appeals.

[¶ 19.] The 2003 legislative changes to SDCL ch. 11-2, although not directly applicable to this appeal, confirm the preemption conclusion. As previously noted, the right to appeal from a board of adjustment to a county commission did not exist under the version of SDCL 11-2-61 (2000) in existence on May 29, 2002, when Taxpayers filed their appeal with the County Commission. However, the 2003 Legislature changed the appellate procedure again to now specifically allow an appeal from the board of adjustment to the county commission pursuant to a county zoning ordinance. The 2003 version of SDCL 11-2-58 now provides:

In exercising the powers mentioned in § 11-2-53, all decisions of the board of adjustment ... may be appealed to the board of county commissioners in accordance with the county ordinance, and any final decision of the board of adjustment or county commission shall be deemed a final administrative decision not subject to referendum or review. However, any aggrieved person or legal entity has the right to appeal as allowed in § 11-2-61.

SDCL 11-2-58 (2003); SL 2003 ch. 78, § 3 (emphasis added). Furthermore, the 2003 amendment to SDCL 11-2-61 now permits an appeal from the county commission or the board of adjustment to circuit court. The 2003 version of SDCL 11-2-61 provides:

Any person or legal entity aggrieved by a decision of the board of adjustment or board of county commissioners may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment or the office of the board of county commissioners.

SDCL 11-2-61 (2003); SL 2008 ch. 78, § 6 (emphasis added).

[¶ 20.] These changes in SDCL ch 11-2 evince legislative intent to change legal rights.

It is ... an established principle of statutory construction that, where the wording of an act is changed by amendment, it is evidential of an intent that the words shall have a different construction.
When an amendment is passed, it is presumed the legislature intended to change existing law. An amendment indicates a change in rights:
The courts have declared that the mere fact that the legislature enacts an amendment indicates that it thereby intended to change the original act by creating a new right or withdrawing an existing one. Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights.

South Dakota Subsequent Injury Fund v. Cas. Reciprocal Exch., 1999 SD 2, ¶ 18, 589 N.W.2d 206, 209-10 (citations omitted). We therefore conclude that the legislative actions in 2000 and 2008 reflect legislative intent to change the permissible methods of taking appeals from boards of adjustment.

[¶21.] Furthermore, the 2000 enactments, including SDCL 11-2-61, were sufficiently comprehensive to make reasonable the inference that the Legislature intended to occupy the field and leave no room for supplementary county regulation. Therefore, SDCL 11-2-61 preempted section 1903 of the TZO, and no appeal was permitted from the Yankton County Board of Adjustment to the Yankton County Commission. Because that appeal was not permitted, the Board of Adjustment’s decision was not before the County Commission. Because the permit decision was not before the County Commission, the circuit court had no jurisdiction to review the County Commission’s decision under SDCL 7-8-28. Finally, because neither Taxpayers nor the State’s Attorney filed an appeal under SDCL 11-2-61, the circuit court lacked subject matter jurisdiction.

[¶ 22.] We reverse.

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

      . While Ryken was preparing to comply with the environmental requirements, he entered into negotiations with Yankton Land and Cattle Co. (YLC) to sell the facility. This sale was completed in early June, 2002. YLC is the owner of the property and the real party in interest as assignee of the permit.

      . The Yankton County Commissioners originally enacted a zoning ordinance establishing standards for concentrated animal feedlots in February, 2001. However, that ordinance was declared unconstitutional by a circuit court in June 2001. The zoning ordinance was held unconstitutional because the county did not have a comprehensive plan in place. That decision was affirmed in Heine Farms v. Yankton County ex rel. County Comm’rs, 2002 SD 88, 649 N.W.2d 597.

      .Under the TZO, Ryken’s facility was a Class A or Class AA animal feeding operation. The TZO provided that such operations could not be located within three miles from any incorporated municipality. Ryken’s facility was located two miles from the incorporated municipality of Yankton.

      . The permit application described the work as: "[t]he existing feedlots shall be modified to accommodate the construction of sedimentation and holding ponds designed to contain 365 days of waste production and stormwater runoff in a zero discharge system.” Ryken did not seek to build a new building, but sought to repair and reconfigure the livestock pens to accommodate the construction of new sedimentation and holding ponds that would contain the necessary accumulation of waste and storm water runoff.

      . The TZO does not provide for Planning Commission or Board of Adjustment issuance of a permit, but instead allows the Zoning Administrator to make permit decisions. However, as was previously noted, because the zoning procedures were new and this case presented complex issues, Fiedler requested guidance from the officials on the Planning Commission and Board of Adjustment. The trial court found that the Board of Adjustment acted merely as an advisory body for the Zoning Administrator's benefit. Therefore, the trial court concluded that the Board of Adjustment did not violate the procedures in the TZO.

      . At oral arguments, YLC asserted that a petition, signed by at least fifteen taxpayers, was never served on YLC, and that there was a question of whether there ever was such a petition. However, a taxpayer petition bearing the file stamps of the County Auditor (June 26, 2002) and the Circuit Court (June 28, 2002) are in the record.

      . SDCL 7-8-28 provides:
      Upon written demand of at least fifteen taxpayers of the county, the state’s attorney shall take an appeal from any action of such board if such action relates to the interests or affairs of the county at large or any portion thereof, in the name of the county, if he deems it to the interest of the county so to do; and in such case no bond need be required or given and upon serving the notice provided for in § 7-8-29, the county auditor shall proceed the same as if a bond had been filed and his fees for making the transcript shall be paid as other claims by the county.

      . Prior to 2000, SDCL 11-2-36 provided:
      Any board of county commissioners may adopt zoning ordinances, resolutions or regulations designating or limiting the location, height, bulk, number of stories, size of, and the specific uses for which dwellings, buildings and structures may thereafter be erected or altered; the minimum and maximum size of yards, or other open spaces; sanitary, safety and protective measures that shall be required for such dwellings, buildings and structures; the area required to provide for off-street loading and parking facilities; flood plain areas; and to avoid too great a concentration or scattering of the population. All such provisions shall be uniform for each class of land or building throughout any district, but the provisions in one district may differ from those in other districts.