author: PER CURIAM.

text:
    2003 ND 161
    In the Matter of APPLICATION FOR DISCIPLINARY ACTION AGAINST Randall L. HOFFMAN, a Member of the Bar of the State of North Dakota. Disciplinary Board of The Supreme Court of The State of North Dakota, Petitioner, v. Randall L. Hoffman, Respondent.
    Nos. 20030141, 20030142.
    Supreme Court of North Dakota.
    Oct. 23, 2003.
    Rehearing Denied Nov. 13, 2003.

      Paul W. Jacobson, Disciplinary Counsel, Bismarck, ND, for petitioner.
    Randall L. Hoffman, pro se, Elgin, ND, for respondent.
   PER CURIAM.

[¶ 1] This is a disciplinary action against Randall L. Hoffman. Hoffman petitioned this Court for review of a hearing panel’s report, which found he violated N.D.R. Prof. Conduct 1.12(a), 3.4(d), 4.2, and 4.4. The hearing panel also considered aggravating factors under North Dakota Standards for Imposing Lawyer Sanctions. The hearing panel recommended Hoffman be suspended from the practice of law for one year and pay costs of $4,558.71. We conclude there is clear and convincing evidence Hoffman violated those rules, and we adopt the hearing panel’s recommendations.

[¶ 2] Hoffman was admitted to practice law in North Dakota on November 10, 1991. This case involves three allegations of misconduct. The first incident started in February 1998, when Hoffman sat as district judge in a divorce action, Toltzman v. Toltzman. The divorce ultimately ended in a default judgment in favor of Michele Toltzman and Hoffman issued findings of fact, conclusions of law, and an order for judgment. Hoffman resigned as district judge January 7, 1999. His resignation became effective April 80,1999.

[¶ 3] On February 5, 1999, Bruce Toltzman filed a motion to amend the judgment. On March 1, 1999, Hoffman filed a request for reassignment in the Toltzman case. On September 14, 2001, Hoffman notified Michele he was representing Bruce. On November 9, 2001, Hoffman filed a motion to amend judgment in the Toltzman matter as the attorney for Bruce. Michele did not consent to the representation and was distressed at the knowledge that the judge in the divorce case was now representing her former husband.

[¶ 4] The second incident occurred on October 29, 2000. Hoffman went to the home of Ray Remmick, an individual with whom Hoffman’s fiancée, Gwen Simmers, had a visitation dispute. Hoffman informed Remmick he was a lawyer, and he wanted to settle the visitation schedule before he married Simmers the next day. Hoffman produced a document which sought Remmick’s consent to the discussion outside of his lawyer’s presence. Remmick declined to sign the document or to speak about the visitation schedule without the advice of his lawyer, Joseph Larson. Remmick attempted to contact his attorney by telephone, but the attorney was out of the office. Remmick explained to his lawyer’s secretary, Alice Kooker, that Hoffman was at his house and asking him to sign a paper. Kooker explained Remmick’s attorney was out of town. Hoffman then spoke with Kooker, stating that Remmick’s proposed visitation schedule was “unacceptable.” The testimony of both Kooker and Remmick indicate Hoffman became very upset and hostile during the encounter.

[¶ 5] After the telephone conversation with Kooker, Hoffman told Remmick that if he did not sign the document and discuss visitation without his attorney, Remmick would not receive visitation with his child that night. Remmick did not comply with Hoffman’s apparent threat, and Remmick was later denied visitation.

[¶ 6] The incident giving rise to the third allegation occurred on December 6, 2000. Hoffman served discovery requests on Remmick in a visitation proceeding concerning the child of Remmick and Simmers. The requests for admissions numbered 112 and interrogatories numbered 58. Several of the questions asked Rem-mick to disclose facts intimate to his sexual relationship with Simmers, including times and locations of sexual encounters. The trial court sustained objections to all but 23 of the requests for admissions and all but eight of the interrogatories.

[¶7] Disciplinary counsel filed a petition for discipline against Hoffman, alleging he violated N.D.R. Prof. Conduct 1.12(a), 3.4(d), 4.2, and 4.4.

[¶ 8] This Court reviews disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. Disciplinary counsel bears the burden to prove by clear and convincing evidence the accused attorney violated the rules of conduct. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶6, 638 N.W.2d 240. This Court will give due weight to the findings of the hearing panel, but does not act as a mere “rubber stamp.” Edwardson, at ¶ 9. Each case for discipline must be individually considered on its own specific facts. In re Giese, 2003 ND 82, ¶ 7, 662 N.W.2d 250.

[¶ 9] Hoffman made several objections to the hearing panel’s report. Hoffman argues the hearing panel made several factual errors and erroneous conclusions of law.

I.

[¶ 10] Hoffman objected that the hearing panel report failed to prove he personally and substantially participated as a judge in the Toltzman matter. Hoffman argues conducting a default divorce proceeding does not constitute personal and substantial involvement for purposes of the rules of conduct. We disagree.

[¶ 11] The applicable rule states:

Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation.

N.D.R. Prof. Conduct 1.12(a).

[¶ 12] As a matter of law, presiding as judge in a divorce proceeding, whether by default or trial, constitutes personal and substantial involvement. See Gen. Counsel of the Ala. State Bar, Op. 93-04 (1993) (stating that a former judge may not represent a party on a motion related to a divorce decree the former judge signed even “where the decree was based upon an answer, waiver and agreement and thus required minimal participation from the judge”); see also Cho v. Superior Court, 39 Cal.App.4th 113, 45 Cal.Rptr.2d 863, 863-64 (1995)(disqualifying an attorney’s firm from representing a party in an action where the lawyer sat as judge in settlement conferences). Without more, considering and granting a default divorce constitutes personal and substantial involvement. However, in this instance Hoffman did more. The record indicates Hoffman questioned Michele Toltzman and conducted an examination of the record before issuing a ruling.

II.

[¶ 13] Hoffman argues the hearing panel erred in finding Hoffman had an attorney-client relationship with Simmers at the time he communicated with Ray Remmick. In relation to this violation, Hoffman also argues the hearing panel erred when it denied his motion in limine and allowed third parties to testify as to whether Hoffman and Simmers had an attorney-client relationship. Hoffman further argues the hearing panel erred when it denied Hoffman’s motion to strike and motion to dismiss. Both motions asserted disciplinary counsel had to prove Hoffman and Simmers had an actual attorney-client relationship. We conclude the hearing panel was correct in its conclusion that Hoffman inappropriately communicated with a represented individual, and he had an apparent attorney-client relationship with Simmers at the time of the communication.

[¶ 14] The hearing panel concluded Hoffman violated N.D.R. Prof. Conduct 4.2 which provides, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Hoffman argues he did not violate Rule 4.2 because no actual attorney-client relationship existed between himself and Simmers at the time of the prohibited communication. We decline to accept such a narrow interpretation of the rule.

[¶ 15] The presence of an attorney-client relationship is a question of fact and may be implied from the conduct of the parties. See Moen v. Thomas, 2001 ND 110, ¶ 13, 628 N.W.2d 325 (citing Stormon v. Weiss, 65 N.W.2d 475, 520 (N.D. 1954)). No formal agreement is necessary to establish an attorney-client relationship. In re McKechnie, 2003 ND 22, ¶ 19, 656 N.W.2d 661. The hearing panel correctly identified, an attorney-client relationship implied from Hoffman’s conduct.

[¶ 16] An attorney-client relationship can be presumed in situations where a person has a reasonable belief a lawyer is protecting someone’s interest. Restatement (Third) of the Law Governing Lawyers § 14 cmt. a (2000). The Restatement provides, “the various duties of lawyers and clients do not always rise simultaneously.” Id. Even if no formal professional relationship exists between the client and the attorney, the attorney may still owe a duty to the prospective client, or third parties. Id.

[¶ 17] Hoffman asserts that the hearing panel must prove three elements derived from agency law in order to establish an attorney-client relationship. Hoffman misunderstands the nature of the violation in reference to the attorney-client relationship. The cases cited by Hoffman examine an attorney-client relationship from the client’s perspective, a standard used to determine an attorney-client relationship in malpractice situations. However, this case is distinguishable, because under Rule 4.2, the relationship must be viewed from the perspective of a reasonable third party applying an objective standard. Hoffman’s conduct allowed third parties to infer Hoffman was at Remmick’s residence to represent Simmers’ interests. Under Hoffman’s interpretation of Rule 4.2, an attorney could claim to represent a client and make statements on that client’s behalf or to their detriment to third parties, but suffer no consequences because the client did not consent to the relationship. Alternatively, an attorney could conduct investigatory interviews with an adversarial party with impunity before his client entered into a formal agreement. This is an absurd interpretation of the rule. Hoffman’s communication with Remmick violated both the purpose and the spirit of Rule 4.2, which is to prevent lawyers from taking advantage of laypersons and to “preserve the integrity of the lawyer-client relationship.” Annotated Model Rules of Professional Conduct 392 (3d. ed.1996).

[¶ 18] Generally, a lawyer need only claim he is acting on behalf of an individual for third parties to presume the attorney possesses the necessary authority to act on behalf of a client. Charles W. Wolfram, Modem Legal Ethics 150 (1986). “When a lawyer’s apparent authority is in question, what reasonably appears calculated to advance the client’s objectives must be determined from the third person’s viewpoint.” Restatement (Third) of the Law Governing Lawyers § 27 cmt c. If an attorney purports to represent an individual to the adverse party, that party is justified in presuming an attorney-client relationship. Hoffman made an appearance before a layperson purporting to represent Simmers’ interests. Hoffman implied an attorney-client relationship when he inserted himself into the dispute between Simmers and Remmick and acted with apparent authority. Hoffman’s behavior toward Rem-mick made the clear suggestion that Hoffman was there on behalf of Simmers. Coupled with the announcement that he was an attorney, Hoffman’s actions at Remmick’s residence on October 29, 2000, amount to legal acts contemplated in the capacity of an attorney-client relationship.

[¶ 19] “A lawyer gains the necessary authority to act in behalf of a client when the client expressly or by implication consents to the representation ... or if the client later ratifies the lawyer’s action after the client has knowledge of all material facts.” Charles W. Wolfram, Modem Legal Ethics 149 (1986). A third party is entitled to reasonably believe a lawyer acts for a client when the client consents or later ratifies the action taken by the lawyer on behalf of the client. Id. at 149-50. In this case, Simmers ratified the attorney-client relationship and representations made by Hoffman in his discussion with Remmick when she later withheld visitation from Remmick following Hoffman’s threat to withhold visitation if Remmick did not sign the consent form. Additionally, Simmers further ratified the attorney-client relationship when Hoffman later filed documents in the visitation proceeding on her behalf.

III.

[¶20] Hoffman argues his attempted communication did not rise to the level of that which is prohibited by the rule. This argument is not persuasive. The facts demonstrate that Hoffman asserted the legal position of another when he communicated to Alice Kooker that Remmick’s visitation proposal was “unacceptable.” Further, Hoffman’s contact with Remmick that night could have had serious legal implications for Remmick’s visitation case.

[¶ 21] The behavior exhibited by Hoffman is precisely the type the rule seeks to prohibit. This rule prevents attorneys from “exploiting the disparity in legal skills between attorney and lay people.” Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y.1990) (citing Papanicolaou v. Chase Manhattan Bank, N.A., 720 F.Supp. 1080, 1084 (S.D.N.Y.1989)). The purpose of Rule 4.2 is also to protect represented persons “against overreaching by adverse counsel, safeguard the client-lawyer relationship from interference by adverse counsel, and reduce the likelihood that clients will disclose privileged or other information that might harm their interests.” ABA/BNA Lawyer’s Manual on Prof. Conduct 71:302 (1997)(eiting ABA Comm, on Ethics and Profl Responsibility, Formal Op. 396 (1995)).

[¶ 22] Hoffman’s communication with Remmick could have potentially compromised Remmick’s legal position in the visitation dispute through either an unintentional admission or disclosure of privileged information. The point at which Remmick indicated he would not discuss the matter outside the presence of his attorney, Hoffman should have ended any further discussion with Remmick and waited for consent from Remmick’s counsel. Further, even if Remmick had consented, Hoffman would still be in violation of Rule 4.2, because the opposing lawyer’s consent is necessary to avoid violating the rule. So long as the representation continues, an adverse client’s consent is not sufficient to avoid a rule violation. N.D.R. Prof. Conduct 4.2.

[¶ 23] We conclude Hoffman’s communication or attempted communication with Remmick rose to the level of one proscribed by Rule 4.2.

IV.

[¶ 24] The hearing panel concluded Hoffman violated N.D.R. Prof. Conduct 4.4 which provides, “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

[¶ 25] Hoffman asserts the hearing panel failed to prove his behavior constituted a threat. We disagree. Hoffman attempts to characterize his behavior as a mere messenger between Simmers and Remmick. We find this argument unpersuasive. These facts demonstrate Hoffman leveraged visitation against Remmick in order to compel Remmick’s cooperation on October 29, 2000. Hoffman sought to settle the visitation dispute on the night before his wedding to Simmers. Hoffman told Remmick that if Remmick did not sign the document or discuss the matter outside the presence of his attorney, then Remmick would not have visitation with the child that evening. Remmick was subsequently denied visitation. These actions constitute a threat within the meaning of Rule 4.4.

[1 26] A violation of Rule 4.4 occurs when an attorney’s behavior has no substantial purpose other than to harass or injure another. N.D.R. Prof. Conduct 4.4. Rule 4.4 is not limited to courtroom behavior or behavior committed in the scope of litigation. Annotated Model Rules of Professional Conduct 414 (3d ed.1996). In this case, the hearing panel concluded Hoffman threatened Remmick that he would not have visitation if he did not discuss visitation with him and later Remmick was denied visitation pursuant to Hoffman’s threat. We agree with the hearing panel’s conclusion.

V.

[¶ 27] Hoffman asserts the hearing panel made inappropriate findings of fact and legal conclusions that his behavior had no purpose other than to burden or harass a third person in discovery. We disagree.

[¶ 28] The use of discovery to intimidate, harass, or burden another is prohibited under N.D.R. Prof. Conduct 3.4(d). Attorney Grievance Comm’n v. Alison, 317 Md. 523, 565 A.2d 660, 668 (1989). In Alison, the court found that the issuance of a subpoena to harass a reporter and prevent him from covering a trial was a violation of the rules. Id. Similarly, abuse of interrogatories and requests for admissions may violate Rule 3.4(d) if they serve no substantial purpose other than to burden or maliciously injure another individual. N.D.R. Prof. Conduct 3.4(d) provides that a lawyer shall not make a frivolous discovery request in pretrial procedure. The prohibition by Rule 3.4(d) against frivolous discovery requests is “akin to the lawyer’s duty under Rule 3.1 regarding meritorious claims and contentions.” ABA/BNA Lawyer’s Manual on Prof. Conduct 61:721 (1997). A claim is frivolous when there is such a complete absence of actual facts or law that a reasonable person could not have expected the court to rule in his favor. Lawrence v. Delkamp, 2003 ND 53, 113, 658 N.W.2d 758.

[129] In the visitation dispute between Simmers and Remmick, Hoffman served on Remmick 112 requests for admissions and 58 interrogatories, each with many sub-parts. The district court sustained objections by Remmick’s attorney to all but 23 of the requests for admissions and all but eight of the interrogatories. Hoffman’s numerous discovery requests probed into the sexual relationship between Simmers and Remmick. Some questions related to times and places of sexual encounters between the two individuals, while others inquired about Remmick’s manners and habits during the sexual encounters. These questions did not relate to the dispute over visitation between Simmers and Remmick, nor did they serve any substantial purpose other than to burden or harass Remmick.

[130] Hoffman asserts his questions relating to Remmick’s physical ability to have sexual relations with Simmers were relevant because Remmick was on disability at the time of the encounters. Hoffman claims these requests were relevant to the moral fitness of the parent as outlined in N.D.C.C. § 14-09-06.2. However, this argument is without merit. Remmick unambiguously stated his legal position was not to seek custody of his daughter but, rather, he was seeking a permanent visitation schedule. Hoffman’s discovery requests, therefore, were irrelevant because Rem-mick’s moral fitness or ability to provide for the child was not at issue in the case. Hoffman’s requests served no other purpose than to burden or harass Remmick and constituted frivolous discovery requests under Rule 3.4(d).

VI.

[¶ 31] Hoffman objected to the hearing panel’s consideration of aggravating factors in its recommendation for discipline and costs. Hoffman has previously been disciplined by this Court. Judicial Conduct Comm’n v. Hoffman, 1999 ND 122, 595 N.W.2d 592. Under N.D. Stds. Imposing Lawyer Sanctions 9.22(a), the disciplining authority may consider prior offenses that may justify an increase in the degree of discipline to be imposed.

[¶ 32] The hearing panel also considered aggravating factors showing a pattern of misconduct, multiple offenses, and Hoffman’s refusal to acknowledge the wrongful nature of the conduct. N.D. Stds. Imposing Lawyer Sanctions 9.22(c), 9.22(d), 9.22(g). Hoffman admitted to the previous sanction by the Court and no other appropriate responses were made regarding consideration of aggravating factors. Therefore, it was appropriate for the hearing panel to consider such circumstances under the rules.

[¶33] We conclude Hoffman violated N.D.R. Prof. Conduct 1.12(a), 3.4(d), 4.2, and 4.4. Considering Hoffman’s professional misconduct and the injury caused to the involved parties, we agree with the hearing panel that a one-year suspension is appropriate under the circumstances of this case. We order Randall Hoffman suspended from the practice of law for one year commencing December 1, 2003. Hoffman shall comply with Rule 6.3 of the Rules for Lawyer Discipline. We further order Hoffman to pay costs of $4,553.71 for this proceeding.

[¶ 34] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.


source: Caselaw Access Project

author: GIENAPP, Circuit Judge. GIENAPP, Circuit Judge

license: Public Domain

text:
    2003 SD 121
    Nelva BLENNER, Claimant and Appellee, v. CITY OF RAPID CITY, Employer and Appellant, and South Dakota Municipal League Workers Compensation Fund, Insurer and Appellant.
    Nos. 22512, 22526.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2003.
    Decided Oct. 1, 2003.

      Frank Driscoll of DeMersseman Jensen, Rapid City, SD, for appellee.
    Mark J. Welter of Woods, Fuller, Shultz & Smith, Sioux Falls, SD, for appellants.
   GIENAPP, Circuit Judge.

[¶ 1.] Circuit Judge David R. Gien-app, sitting for Justice Richard W. Sabers, disqualified, delivers the majority opinion of the Court on Issue One, which holds that Blenner’s loss of use rating should not have been added to her partial disability rating.

[¶ 2.] Justice Steven L. Zinter delivers the majority opinion on Issue Two, which holds that prejudgment interest on the permanent partial disability benefits runs from the date of the impairment rating and is calculated on each payment as it becomes due.

[¶ 3.] Judge Gienapp dissents on Issue Two.

[¶ 4.] Circuit Judge Gienapp delivers the majority opinion on Issue Three, which holds that the prejudgment interest rate is the Category C rate pursuant to SDCL 54-3-16(3).

[¶ 5.] GIENAPP, Circuit Judge, writing the majority opinion on Issue One.

[¶ 6.] This is an appeal by the City of Rapid City (Employer) and the South Dakota Municipal League Worker’s Compensation Fund (Insurer) from a circuit court decision and order affirming a decision of the Department of Labor in a workers’ compensation case commenced by Nelva Blenner. We reverse and remand.

FACTS AND PROCEDURE

[¶ 7.] While employed by the South Dakota School of Mines and Technology as a secretary, Nelva Blenner (Blenner) suffered a back injury. In 1978 she underwent back surgery to correct the problem. In connection with the 1978 back injury the physician reported a fifteen percent whole person impairment rating to the insurer.

[¶ 8.] After employment with the School of Mines, Blenner became employed by the Rapid City Police Department as a sergeant. The injury at issue in this case occurred while she was receiving training on a new weight machine on February 23, 1993. The trainer forgot to reduce the weight setting on the machine and when Blenner got on the machine to exercise, her lower back was immediately injured. As a result, she underwent two microdiscectomies in 1993 and a spinal fusion in 1994. After Blenner’s accrued sick leave was exhausted in October 1994 she resigned from the Rapid City Police Department.

[¶ 9.] Prior to the injury Blenner had received a two-year degree in general studies. Insurer agreed to allow her to return to Black Hills State University in January 1995 to complete her bachelor’s degree. Insurer paid rehabilitation benefits from January 1995 through December 31, 1996, and also paid all of the total temporary disability benefits that Blenner was entitled to prior to her receiving her permanent partial disability rating.

[¶ 10.] Insurer had Blenner examined by Dr. Lee Ahrlin who found that Blenner had attained maximum medical improvement and gave a twenty-five percent whole person permanent partial disability (PPD) rating. Dr. Ahrlin subtracted the fifteen percent whole person impairment rating from the previous injury which occurred at the time Blenner was employed by the South Dakota School of Mines. This resulted in a finding that Blenner had a net ten percent PPD rating as a result of the police department injury. Blenner did not agree that the PPD rating adequately reflected her loss and petitioned for benefits pursuant to Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548 (S.D.1990).

[¶ 11.] A hearing was held before the Administrative Law Judge (ALJ). At issue was the extent of Blenner’s entitlement to Cozine benefits for loss of use under SDCL 62-1-1(9) and SDCL 62-4-6. Three vocational rehabilitation expert witnesses testified at the hearing. One of the experts was called by Blenner and the other two experts were called by the Employer/Insurer. The ALJ rejected the testimony of Blenner’s expert. The ALJ found that one of the Employer/Insurer’s experts found a loss of earning capacity in the amount of eighteen percent and the other Employer/ Insurer’s expert found a loss of earning capacity of thirty-eight percent. The ALJ averaged the eighteen percent and thirty-eight percent to get a Cozine loss of twenty-eight percent. In addition the ALJ found there was a ten percent net medical impairment rating of the whole body. The ALJ added this ten percent to the twenty-eight percent Cozine loss for a total loss of thirty-eight percent. The ALJ also awarded interest on the ten percent permanent partial disability from the date of the rating until paid.

[¶ 12.] The circuit court affirmed the decision of the ALJ. The circuit court established the rate of interest on the permanent partial disability at ten percent.

APPEAL ISSUES
ISSUE ONE
Should the Department of Labor have added Blenner’s loss of use rating to her permanent partial disability rating?
ISSUE TWO
Should the Department of Labor have awarded interest on the permanent partial disability benefits from the date of the impairment rating?
NOTICE OF REVIEW ISSUE
ISSUE THREE
If interest is recoverable, what is the applicable rate of interest?

STANDARD OF REVIEW

[¶ 13.] The standard of review in workers’ compensation cases is well established. Davidson v. Horton Industries, Inc., 2002 SD 27, 641 N.W.2d 138. Under SDCL 1-26-37, when the issue is a question of fact the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law the actions of the agency are fully reviewable. Id.

ANALYSIS

ISSUE ONE

[¶ 14.] Should the Department of Labor have added Blenner’s loss of use rating to her permanent partial disability rating?

[¶ 15.] The ALJ found that the twenty-eight percent Cozine benefit should be added to the ten percent medical impairment rating. The circuit court affirmed.

[¶ 16.] At the time of Blenner’s injury, SDCL 62-1-1(9) read as follows:

“Permanent partial disability,” a loss of use of the body or member of the body which is partial and permanent and shall be determined by a medical impairment rating, expressed as a percentage of the effected body part, using the guide to evaluation of permanent impairment established by the American medical association, third edition, November 1988. In addition to the medical impairment rating as set forth above, the employee is entitled to receive up to an additional fifty percent of the affected body part if the medical impairment rating given does not adequately reflect his loss of use as measured by the ability of the employee to perform work in the open labor market and to earn comparable wages taking into consideration the employee’s education, training, experience and capacity for rehabilitation. There is a presumption that the employee has no loss of use beyond the medical impairment rating if the employee is able to return to his usual and customary line of employment, (emphasis added.)

This form of SDCL 62-1-1(9) was enacted in 1992, SD Sess.L. ch. 364, § 4, and was repealed in 1994. 1994 SD Sess.L. ch. 396, § 5. Blenner’s injury occurred during this 1992-1994 time frame.

[¶ 17.] The ALJ and the circuit court found that SDCL 62-1-1(9) allowed the stacking of the Cozine rating and the medical impairment rating. This issue involves an interpretation of SDCL 62-1-1(9). As a consequence our review is a de novo review. Davidson v. Horton, 2002 SD 27 at ¶ 17, 641 N.W.2d at 141. Our review of the evidence as it relates to this issue is based on the clearly erroneous standard. Id.

[¶ 18.] In Tischler v. United Parcel Service, 1996 SD 98, 552 N.W.2d 597, we held that under Caldwell v. John Morrell & Co., 489 N.W.2d 353 (S.D.1992), and Cozine there is an allowance of recovery to the full extent of loss of use; however, this does not authorize an employee to recover based on a medical impairment rating plus the employee’s loss of use. While Tischler was decided after SDCL 62-1-1(9) was repealed, the wording of SDCL 62-1-1(9) in effect at the time of the Blenner injury does not create a different result.

[¶ 19.] Blenner contends the wording of SDCL 62-1-1(9) mandates an automatic stacking of the Cozine benefits and the PPD loss. We find SDCL 62-1-1(9) does not mandate such stacking and the Cozine benefits and PPD loss would only be added when supported by expert testimony establishing PPD loss was not part of the Cozine analysis of Cozine loss. Such expert testimony is not in existence in this case, and the expert testimony relied on by the ALJ did not provide that the loss of use was over and above the medical impairment rating.

[¶ 20.] When SDCL 62-1-1(9) provided for “up to an additional 50 percent of the affected body part if the medical impairment rating does not adequately reflect his loss of use as measured by the ability of the employee to perform work in the open labor market to earn comparable wages” it did not mandate stacking; rather the language was permissive and the word “additional” in the statute limited the phrase “50 percent.” Any other interpretation could lead to results mandating recovery of over one hundred percent. A construction which accords with reason is to be preferred to a literal construction involving a palpable absurdity. Rice v. City of Watertown, 66 S.D. 221, 281 N.W. 116 (1938).

[¶ 21.] The circuit court erred in stacking the twenty-eight percent Cozine benefit above the ten percent medical impairment rating. Blenner is entitled only to a twenty-eight percent rating in connection with her work related injury. Accordingly, we reverse the circuit court and remand for further action in accordance with this decision.

[¶ 22.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices and LOVRIEN, Circuit Judge, concur.

[¶23.] ZINTER, Justice, writing for the majority on Issue Two.

ISSUE TWO

[¶ 24.] Should the Department of Labor have awarded interest on the permanent partial disability benefits from the date of the permanent partial disability rating?

[¶ 25.] Dr. Ahrlin issued the permanent partial disability rating on June 26, 1995. The ALJ found Blenner was entitled to interest on the PPD benefits from the date of Dr. Ahrlin’s rating to the date paid. The circuit court affirmed. This is a question of law and is reviewed by this Court de novo. Davidson, 2002 SD 27 at ¶ 19, 641 N.W.2d at 141.

[¶ 26.] We addressed the general issue of prejudgment interest awards in Johnson v. Shelly Oil Co., 359 N.W.2d 130 (S.D.1984) and Tischler, 1996 SD 98, 552 N.W.2d 597. We held that employees are entitled to prejudgment interest on PPD benefits. Therefore, Blenner was entitled to prejudgment interest on the benefits due under the PPD rating for the permanent injury to her back.

[¶ 27.] We must, however, determine whether that interest should be paid from the date of Dr. Ahrlin’s PPD rating on June 26, 1995. A resolution of this issue is complicated by the fact that Blenner was collecting rehabilitation benefits pursuant to SDCL 62-4-5.1 until December 31, 1996. Because Blenner was receiving rehabilitation benefits at the time of Dr. Ahrlin’s PPD rating, Employer argues that, under SDCL 62-4-6, interest should not commence on the PPD benefits until the rehabilitation benefits terminated. We disagree.

[¶ 28.] SDCL 62-4-6, as it existed at that time, authorized PPD benefits and rehabilitation benefits. It authorized the PPD benefits “in addition to” rehabilitation benefits.

For injuries in the following schedule, an employee shall receive in addition to compensation provided by §§ 62-4-1, 62-4-3 and 62-1-5.1 [rehabilitation benefits], compensation for the following further periods [PPD benefits], subject to the limitations as to rate and amounts fixed in § 62-441, for the specific loss herein mentioned, but shall not received any compensation under any other provision of this title, (emphasis supplied).

Id.

[¶ 29.] Although Employer argues that, under this statute, interest on PPD benefits should not commence until rehabilitation payments have ended, we see nothing in the language of SDCL 62-4-6 that warrants that conclusion. Obviously, a worker is not entitled to prejudgment interest on a workers compensation award until the worker becomes entitled to receive the award. However, there is no statutory language in SDCL 62-4-6 providing that PPD benefits may not commence until rehabilitation benefits terminate. Rather, the operative language of this statute provides that PPD benefits are payable “in addition to” rehabilitation benefits. This “in addition to” language does not suggest that the legislature intended to delay or preclude a simultaneous entitlement to rehabilitation benefits and the benefit an injured worker is entitled to for the permanent partial disability. Therefore, Blenner was entitled to prejudgment interest from the date of her permanent partial disability rating.

[¶ 30.] Our precedent supports this conclusion. In Tischler we expressly affirmed the award of prejudgment interest “from the dates of the impairment ratings even though UPS disputed liability.” Id. at ¶ 65, 552 N.W.2d at 607. Therefore, the trial court correctly concluded that because claimant was entitled to the benefits from the June 26, 1995 impairment rating date, prejudgment interest should also commence from that date.

[¶ 31.] We do, however, agree that because a lump sum payment was not authorized for the PPD benefits pursuant to SDCL 62-7-6, interest should not have been awarded from June 26, 1995 on the sum of all payments subsequently paid. Instead, interest should have commenced on the date of the PPD rating (June 26, 1995), but it should have been calculated on each weekly payment as it became due.

[¶ 32.] The interest award on PPD benefits is reversed and remanded for recalculation in accordance with this decision.

[¶ 33.] GILBERTSON, Chief Justice, MEIERHENRY, Justice, and LOVRIEN, Circuit Judge, concur.

[¶ 34.] GIENAPP, Circuit Judge, dissenting on Issue Two.

[¶ 35.]

GIENAPP, Circuit Judge

(dissenting).

[¶ 36.] I dissent as to one aspect of the majority decision on Issue Two. I agree that Blenner is entitled to prejudgment interest on the benefits due under the PPD rating for the permanent injury to her back. I also agree with the majority decision relating to the determination that when there is not a lump sum payment that prejudgment interest should be calculated on each weekly payment as it becomes due. Where I part company with the majority is as to the issue as to the time of the commencement of PPD benefits and as a result when interest would commence accruing on the PPD benefits. The PPD benefits are not due until the rehabilitation benefits terminate and interest should not commence until that time.

[¶ 37.] SDCL 62-4-6, as it existed at the time, indicates that PPD payments would be for the following further periods (emphasis supplied.) The use of the word further in SDCL 62-4-6 establishes that those periods would not commence until subsequent to the exhaustion of the rehabilitation benefits. As a result, unless there was a lump sum payment which is not the case herein, the periodic payments for PPD benefits do not commence until after the exhaustion of the rehabilitation benefits under the plain statutory wording and as a consequence prejudgment interest would not commence until that time. Under the facts of this case that time is subsequent to the date of Dr. Ahrlin’s PPD rating.

[¶ 38.] The true intention of a statute is to be ascertained primarily from the language expressed in the statute. Moss v. Guttormson, 1996 SD 76, 551 N.W.2d 14. The use of the word further in SDCL 62-4-6 establishes that the PPD benefits are after the rehabilitation benefits. I would reverse and remand for the computation of prejudgment interest from the time that the PPD benefits became payable which is after the exhaustion of the rehabilitation benefits.

[¶ 39.] 6IENAPP, Circuit Judge, writing for the majority on Issue Three.

ISSUE THREE

[¶ 40.] What is the applicable rate of prejudgment interest?

[¶ 41.] The ALJ allowed prejudgment interest on the PPD, but did not determine the applicable rate of interest. The circuit court held the applicable statutory prejudgment interest rate was pursuant to SDCL 54-3-5 at the Category B rate, ten percent, as established in SDCL 54-3-16(2). This issue is before this Court pursuant to a notice of review filed by Blenner. This is a question of law and is reviewed by this Court de novo. Divoidson v. Horton, 2002 SD 27 at ¶ 17, 641 N.W.2d at 141.

[¶ 42.] Blenner contends that SDCL 54-3-5 is the operative statute for prejudgment interest and interest should be at the Category F rate established by SDCL. 54-3-16. Blenner contends that payments for PPD do not constitute damages as referred to in SDCL 21-1-13.1 and as a consequence SDCL 54-3-5 is the operative statute.

[¶ 43.] Employer/Insurer takes the position that SDCL 21-1-13.1 is the operative statute for the purpose of determining the rate of interest and that interest should be at the Category B rate. SDCL 21-1-13.1 was enacted in 1990 and had not been enacted at the time of the incidents involved in Shelly Oil and Tischler decisions.

[¶ 44.] In Shelly Oil and Tischler this Court upheld prejudgment interest in workers’ compensation cases. In both Shelly Oil and Tischler SDCL 21-1-11 was established as being the empowering statute for prejudgment interest. While Blen-ner takes the position that SDCL 54-3-5 is the applicable statute, it was enacted prior to Shelly Oil and Tischler decision, and, was in existence at the time the issue was decided.

[¶ 45.] SDCL 54-3-5 sets the interest rate, in relevant part, on amounts “due on any instrument of writing, and on moneys lent, or due on any settlement of accounts.”

[¶ 46.] SDCL 57A-3-104(b) defines “instrument” as a negotiable instrument. Additionally, an instrument has been defined as:

A formal or legal document in writing, such as a contract, deed, will, bond or lease. A writing that satisfies the requisites of negotiability prescribed by UCC Art. 3. A negotiable instrument (defined in UCC § 3-104), or a security (defined in UCC § 8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment. UCC § 9-501(1).

Black’s Law Dictionary, 801 (6th ed. 1990). Workers’ compensation benefits are not encompassed in the wording at SDCL 54-3-5 and prejudgment interest should not be based on SDCL 54-3-5.

[¶47.] SDCL 21-1-13.1 provides for prejudgment interest, under certain criteria, for any person who is entitled to recover damages. SDCL 21-1-1 defines damages:

Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefore in money, which is called damages. Detriment is a loss or harm suffered in person or property.

This definition utilizes the phrase “recover for the person in fault” as part of the definition of damages. Compensation under the workers’ compensation law is not based on fault, but rather is a responsibility which the employer assumes. SDCL 62-3-1; Benson v. Sioux Falls Medical and Surgical Clinic, 62 S.D. 324, 252 N.W. 864 (1934). An award for workers’ compensation pursuant to a work related injury is not encompassed by the wording of SDCL 21-1-13.1.

[¶48.] Shelly Oil and Tischler held SDCL 21-1-11 to be the operative statute for prejudgment interest in connection with workers’ compensation awards. SDCL 54-3^4 would have been the appropriate statute for interest computation pursuant to SDCL 21-1-11. The enactment of SDCL 21-1-13.1 and SDCL 21-1-13.2 does not alter the applicability of SDCL 54-3-4. That statute, a catchall provision that applies the category C rate of interest, applies where there is any general “ obligation to pay interest.” Id. Because this is the most applicable statute for a workers compensation award, the category C rate applies. Prejudgment interest is recoverable at the Category C rate of interest pursuant to SDCL 54-3-4, and SDCL 54-3-16(3).

[¶ 49.] The lower court’s decision to impose a Category B rate of interest pursuant to SDCL 54-3-16(2) is reversed and remanded for entry of an order indicating that the Category C rate is assessed pursuant to SDCL 54-3-16(3).

[¶ 50.] GILBERTSON, Chief Justice, ZINTER and MEIERHENRY, Justices, and LOVRIEN, Circuit Judge, concur.

[¶ 51.] GIENAPP, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 52.] LOVRIEN, Circuit Judge, for KONENKAMP, Justice, disqualified.

      . The only expert who testified that the PPD was not a factor in the Cozine analysis was Jerry Gravatt. Gravatt was an expert called to testify by Blenner. The ALJ rejected the testimony of Gravatt.

      . The reference to the phrase "further periods” in SDCL 62-4-6 as noted by the dissent, does not change this conclusion. Under the schedule of benefits provided by §§ 62-4-1, 62-4-3 and 63-4-5.1, benefits are awarded in the form of "periods” of weekly compensation. Thus "further periods” is a reference to compensation "amounts" to which a claimant is entitled, rather than the periods of time when benefits commence.

      . The circuit court held that the applicable statutory prejudgment interest statute is SDCL 54-3-5 and indicated that interest under SDCL 54-3-5 is at the Category B rate as established by SDCL 54-3-16(2) of ten percent. The circuit court’s decision is inconsistent. If SDCL 54-3-5 is the applicable statute it should not be Category B interest. Conversely, if the interest is Category B interest then SDCL 54-3-5 is not the enabling statute.

      . In Herr v. Dakotah, Inc., 2000 SD 90, 613 N.W.2d 549, this Court dealt with a workers’ compensation case that provided for interest at the ten percent rate. The issue of the proper rate of interest was not raised or addressed in that decision.

      . Category C interest is presently twelve percent and was amended to twelve percent in 1994 which was prior to the time when any prejudgment interest would be payable to Blenner.


author: MEIERHENRY, Justice.

text:
    2003 SD 120
    Diane Marilyn GUTHMILLER, Plaintiff and Appellee, v. Kevin Dean GUTHMILLER, Defendant and Appellant.
    No. 22719.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Oct. 1, 2003.
    Wanda Howey-Fox of Harmelink & Fox, Yankton, SD, for plaintiff and appel-lee.
    Michael D. Stevens of Blackburn & Stevens, Yankton, SD, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] At issue in this appeal is the failure of the trial court to determine a value of the husband’s insurance business when dividing the marital estate in the divorce action. We reverse and remand.

[¶ 2.] Diane Guthmiller filed a divorce action against Kevin Guthmiller. The main issue for the trial court was valuation and distribution of the marital estate, which consisted of a comprehensive list of 286 marital assets and debts. The parties agreed that the divorce would be granted on grounds of irreconcilable differences. They also agreed to joint legal custody of the three children with Diane having physical custody. Neither party sought alimony. The trial court placed a value on each asset and debt except for one of the assets — Kevin’s insurance business known as “Guthmiller Insurance.”

[¶ 3.] Guthmiller Insurance consists solely of Kevin as a self-employed insurance agent for American Family Insurance. As an agent for American Family, Kevin only owns his office furniture while American Family owns the insurance policies, the office equipment and supplies of the business. He also depreciates his personal vehicle as a business expense. His source of income from the business is based on the commissions he receives from the sale of insurance policies. He receives commissions on premiums for new policies he sells and commissions from premiums collected from renewals of insurance policies sold in prior years. During a previous eight-year period, the annual renewal premiums ranged from $42,800 to $68,000. His annual net earnings from the business from new and renewal premiums averaged $30,000 a year.

[¶4.] Neither party presented expert testimony of the value of the insurance business. Diane testified that she estimated the value of Guthmiller Insurance at $62,177.80. She based her estimate on the average annual renewal premiums for the past eight years. Kevin, on the other hand, valued the business at zero. The only other testimony concerning value was from a representative of American Family who testified that in the event the contractual relationship between American Family and Kevin ended, the company would pay Kevin $38, 873.01 for the renewal premiums over a five or ten-year period.

[¶ 5.] At the conclusion of the testimony, the trial court determined that the marital estate was to be divided equally between the parties. In its findings, the trial court methodically valued each item and awarded the item to one of the parties, except for the insurance business. The court noted that neither party had presented expert testimony as to the value of Kevin’s insurance business. Nevertheless, without placing a value on the insurance business, the trial court distributed 40 percent of Kevin’s gross renewal income from Guthmiller Insurance for the next ten years to Diane, 60 percent to Kevin. Kevin appeals claiming that the trial court erred in its valuation and distribution of the business.

ISSUES

1. Whether the trial court erred in its valuation and distribution of the marital estate.

DECISION

[¶ 6.] This Court has previously held that failure to value a marital asset constitutes an abuse of discretion and is reversible error. As we stated in Guindon v. Guindon “[a] trial court must place a value upon all of the property held by the parties and make an equitable distribution of that property.” 256 N.W.2d 894, 897 (S.D.1977). A trial court’s failure to place a value on a marital asset is an abuse of discretion. Id. “Failure to place a value on the property of the parties for purposes of equitable distribution is reversible error.” Endres v. Endres, 532 N.W.2d 65, 68 (S.D.1995) (citations omitted). Here, the trial court should have made a specific finding regarding the value of Guthmiller Insurance before making an equitable distribution. The court merely surmised that the business was worth “something” and then proceeded to distribute 40 percent of the future renewal premiums for the next ten years to Diane.

[¶7.] In this case, by not placing a value on the business, the trial court has created inequity in the property division contrary to its stated intent of dividing the marital estate one half to each party. For example, the court’s manner of distribution is likely to result in substantial cash payments from the business to Diane over the next 10 years. Assuming the business collects renewal premiums commensurate with those collected over the last eight years, Kevin’s gross renewals would be $50,000 to $60,000 annually. Forty percent of that would result in an annual payment to Diane of over $20,000 — a substantial amount for a business, which only nets Kevin $30,000 a year. Furthermore, the court still assumed that Kevin would continue to net $30,000 for purposes of child support calculation albeit he would be paying Diane 40 percent of his gross renewals. Kevin additionally claims that the trial court distributed the insurance business twice — once when the court awarded Diane forty percent of the gross renewals and the second time when it awarded him $33,873.01 as a retirement account based on those same renewals.

[¶ 8.] The trial court abused its discretion by not assigning a value to the insurance business. We reverse and remand for the trial court to determine the value of Guthmiller Insurance and equitably divide the property with the supplemented value. The value should be based upon the evidence or within a reasonable range of values presented to it. DeVries v. DeVries, 519 N.W.2d 73, 76 (S.D.1994). The trial court may set the value based on the current record or has the discretion to allow the parties to present additional evidence.

[¶ 9.] We have reviewed the other issues presented and find them to be without merit.

[¶ 10.] The parties’ request for appellate attorney fees is denied.

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

      . From 1994 to 2001, the renewal premiums he collected were as follows:

      . In valuing the business, the trial court stated on the record:
      The insurance business, there’s a dispute exactly how that is valued. Obviously, if it's a business that brings in a lot of return every year, which this clearly does, it shows that the renewals bring in the vicinity between forty and fifty thousand dollars every year, that has a clear value of some kind going into the future. I have no expert testimony upon which I can value that insurance business. I’m going to require that in full payment of the interest in that insurance business, which is a marital asset to be divided here, that for a period of 10 years that Mr. Guthmiller will pay to the plaintiff 40 percent of those renewals each year. That gives him some compensation for the activity that will be used in keeping those renewals going.

      . The renewals represented 59% of total receipts in 1999, 76% in 2000 and 85% in 2001.


author: SABERS, Justice.

text:
    2003 SD 122
    SUNFLOUR RAILROAD, INC., Plaintiff and Appellee, v. Eugene PAULSON, and Heartland Organic Foods, Inc., a South Dakota Corporation, Defendants and Appellants.
    No. 22642.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Oct. 1, 2003.

      Jeffrey T. Sveen, Julia M. Dvorak of Siegel, Barnett and Schütz, L.L.P., Aberdeen, South Dakota, Attorneys for plaintiff and appellee.
    Eugene Paulson, Heartland Organic Foods, Inc., Rosholt, South Dakota, Pro se.
   SABERS, Justice.

[¶ 1.] Eugene Paulson (Paulson), acting pro se on behalf of himself and Heartland Organic Foods, Inc. (Heartland), appeals from a judgment entered against Paulson and Heartland. Paulson and Heartland also appeal the dismissal of their counterclaim against Sunflour Railroad, Inc. (Sunflour).

FACTS

[¶ 2.] Paulson and Heartland own property adjacent to a railroad right-of-way. Paulson and Heartland’s grain elevator encroaches on the right-of-way. Prior to July 2000, Soo Line Railroad owned the right-of way. Paulson and Soo Line had a lease agreement that allowed Paulson and Heartland to leave the elevator on the right-of-way. In July 2000, Sunflour purchased the right-of-way via Quit-Claim Deed. On March 16, 2001, Sunflour notified Paulson and Heartland that the lease with Soo Line was not binding upon Sunflour and that the elevator must be removed. Sunflour informed Paulson and Heartland that until the elevator was removed, Suhfl-our would charge $500 per month rent. Paulson and Heartland refused to remove the elevator or pay rent and Sunflour brought suit to force removal and payment of damages plus pre-judgment interest in connection with rent.

[¶ 3.] Paulson and Heartland brought a counterclaim alleging that Sunflour owed rent of $500 per month because Sunflour was using a siding track that encroached on their property.

[¶ 4.] The trial court entered judgment in favor of Sunflour for $9,000 for rent plus pre-judgment interest and ordered Paul-son and Heartland to remove their elevator from Sunflour’s property. The trial court found that it did not have jurisdiction to enter a judgment in favor of Paulson and Heartland on the counterclaim for the reasons stated in Issue 2.

[¶ 5.] Paulson and Heartland raise several issues on appeal. Because our standard of review for this case has been significantly restricted by the state of the record, we present the issues as:

1. Whether the circuit court’s findings supported the judgment against Paulson and Heartland.
2. Whether the circuit court’s findings supported dismissal of the Defendants’ counterclaim for lack of jurisdiction.
3. Whether Sunflour and its attorney committed fraud by raising the issue of federal preemption and by attempting to enforce the circuit court’s judgment.
The circuit court is affirmed on Issue 1, reversed on Issue 2 and we decline to reach Issue 3.

STANDARD OF REVIEW

[¶ 6.] Paulson failed to order a transcript of the circuit court proceedings. It is well settled that the appellant bears the responsibility of presenting an adequate record on appeal. Specialty Mills, Inc. v. Citizens State Bank, 1997 SD 7, ¶ 16, 558 N.W.2d 617, 623, n.6 (citing Bal-todano v. North Cent. Health Serv., Inc., 508 N.W.2d 892, 894-95 (S.D.1993)). By failing to order the transcript in a timely manner, the appellant waives the right to a transcript. Id. Where the record contains no transcript, the record on appeal is confined to those pleadings and papers transmitted from the circuit court. Selway Homeowners Association v. Cummings, 2003 SD 11, ¶ 15, 657 N.W.2d 307, 312 (citing Baltodano, 508 N.W.2d at 894). Finally, “[w]hen confronted with incomplete records, our presumption is that the circuit court acted properly.” Specialty Mills, Inc., 1997 SD 7, ¶ 16, 558 N.W.2d at 623, n.6.

[¶ 7.] Our review is further limited because Paulson also failed to propose findings of fact and conclusions of law and failed to object to Sunflour’s proposed findings of fact and conclusions of law. The Court is now “significantly limited ‘to the question [ ] whether the findings support the conclusions of law and judgment.’ ” Selway Homeowners Association, 2003 SD 11, ¶ 14, 657 N.W.2d at 312 (quoting Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991)).

[¶ 8.] 1. WHETHER THE CIRCUIT COURT’S FINDINGS SUPPORT THE JUDGMENT AGAINST PAULSON AND HEARTLAND.

[¶ 9.] As a threshold matter, we note that Paulson has appeared pro se throughout these proceedings on behalf of Heartland and himself. In South Dakota, a director, officer or shareholder of a corporation who is not a licensed attorney is not permitted to appear pro se to represent a corporation. Wold Family Farms, Inc. v. Heartland Organic Foods, Inc., 2003 SD 45, ¶ 27, 661 N.W.2d 719, 726, n.4 (citing Rosebud Federal Credit Union v. Mathis Implement, Inc., 515 N.W.2d 241, 244 (S.D.1994) (Miller, C.J., concurring specially)). Although he was entitled to appear pro se on his own behalf, as an officer and shareholder for Heartland, Paulson should not have been permitted to represent the corporation. Heartland was therefore technically in default for failure to appear. See SDCL 15-6-4(a); 15-6-55(a); 15-6-55(b). Had Sunflour filed the statutorily mandated notice of default, the circuit court could have entered a default judgment against the corporation. Id. Neither the circuit court nor the parties appear to have been aware that Paulson could not represent Heartland, and therefore this issue was not before the circuit court.

[¶ 10.] This Court has not been presented with the question of how to proceed in this scenario. Other courts addressing the issue have refrained from allowing the corporation to benefit from the wrongful representation. See e.g. Jardine Estates, Inc. v. Koppel, 24 N.J. 536, 183 A.2d 1 (1957). We agree with this view. Remanding this case or vacating the judgment would permit Heartland and Paulson to re-litigate these issues and would be a waste of judicial resources. Under the facts of this case, we hold that the parties are now bound by the prior proceedings and we will proceed to the merits of the appeal.

[¶ 11.] The circuit court found that Sunflour purchased a railroad right-of-way running through Victor, South Dakota from Soo Line Railway. Soo Line Railway had a lease with Defendants which allowed Defendants’ grain elevator to encroach on Soo Line’s property. The court found that Sunflour was not bound by that lease and that on March 16, 2001, Sunflour notified Paulson that the elevator had to be removed from the property. Sunflour further advised that until the elevator was removed, Sunflour would charge rent of $500 per month. The court concluded that the notice became effective on May 1, 2001, the first day of the month following thirty days from the notice. See SDCL 43-8-8. Having found that Sunfl-our owned the land, that the elevator was on Sunflour’s land, that Sunflour was not bound by the lease between Soo Line and Defendants, and that Paulson and Heartland had notice, the court properly supported its conclusion that Sunflour was entitled to rent and pre-judgment interest.

[¶ 12.] The circuit court also held that damages by way of rent were an inadequate remedy because of the continuing trespass. This supports the court’s order that Paulson and Heartland remove the elevator.

[¶ 13.] The trial court is affirmed on Issue 1.

[¶ 14.] 2. WHETHER THE CIRCUIT COURT’S FINDINGS SUPPORTED DISMISSAL OF PAUL-SON AND HEARTLAND’S COUNTERCLAIM FOR LACK OF JURISDICTION BASED ON THE DOCTRINE OF PREEMPTION.

[¶ 15.] The trial court concluded that the Surface and Transportation Board (STB) had exclusive jurisdiction over Paul-son and Heartland’s counterclaim pursuant to 49 U.S.C. § 10501. The statute provides in part that the STB has exclusive jurisdiction over the “construction, acquisition, operation, abandonment, or discontinuance of a spur[.]” 49 U.S.C. § 10501(b)(2) (emphasis supplied). Based on its finding that, “Defendant’s counterclaim for rent ... if allowed, could force the Plaintiff to abandon its use of a spur[,]” the trial court held that it did not have jurisdiction to entertain the counterclaim.

[¶ 16.] The state of the record, the trial court’s findings and the parties’ briefs offer no guidance on this issue. Paulson and Heartland offer no applicable authority for their argument that the trial court erred. Likewise, Sunflour offers only a very general statement of law from one case to support the assertion that the trial court properly found preemption. A review of 49 U.S.C. § 10501 and case law concerning the statute raises questions as to whether the trial court properly found its jurisdiction preempted based on the doctrine of preemption.

[¶ 17.] The jurisdiction granted to the STB in 49 U.S.C. § 10501 is both exclusive and preemptive. Courts have consistently held that the preemption clause of subsection (2) has a broad scope. See e.g. Dakota, Minnesota & Eastern R.R. Corp. v. South Dakota, 236 F.Supp.2d 989 (2002); City of Auburn v. United States, 154 F.3d 1025, 1030 (9th Cir.1998); Wisconsin Central Ltd. v. City of Marshfield, 160 F.Supp.2d 1009, 1013 (W.D.Wis. 2000). Despite its breadth, the jurisdiction of the STB does not foreclose every conceivable state claim. It is generally held that the exclusive and preemptive jurisdiction granted to the STB is over attempts to impose economic regulation on rail transportation. See e.g. Cedarapids, Inc., v. Chicago, Central & Pacific R.Co., 265 F.Supp.2d 1005, 1011 (N.D.Iowa 2003). The holdings are supported by the statute, which provides in part that, “the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” 49 U.S.C. § 10501(b)(2). Therefore, the question before the court was whether allowing a state law claim for rent, which may or may not lead to abandonment of a track, would constitute “regulation” of the railroad. This question was presumed affirmatively rather than supported or answered specifically in the court’s findings of fact and conclusions of law.

[¶ 18.] The statute does not define the term “regulate,” however, Black’s Law dictionary defines it as “the act or process of controlling by rule or restriction.” Blacks Law Dictionary 1289 (7th ed. 1999). The court’s finding that imposition of rent “could” force Sunflour to “abandon” the track is insufficient to establish that imposition of judgment on a state law claim for rent constitutes “regulation” under 49 U.S.C. § 10501. Having raised the issue of preemption, it was incumbent upon Sunflour to support the assertion. See e.g. Eldridge v. City of Greenwood, 331 S.C. 398, 503 S.E.2d 191 (1998) (the party asserting preemption bears the burden of proof). Sunflour failed to meet its burden either here or below. The trial court’s single finding on this issue is insufficient to support its conclusion of preemption and therefore the issue must be remanded for the court to make the appropriate findings.

[¶ 19.] The trial court is reversed on Issue 2.

[¶ 20.] 3. WHETHER SUNFLOUR AND ITS ATTORNEY COMMITTED FRAUD BY RAISING THE ISSUE OF FEDERAL PREEMPTION AND BY ATTEMPTING TO ENFORCE THE CIRCUIT COURT’S JUDGMENT.

[¶ 21.] For the first time on appeal, Paulson alleges that Sunflour engaged in fraudulent activity by raising the issue of federal preemption under 49 U.S.C. § 10501(b) at trial and by attempting to enforce the circuit court’s judgment. This Court does not decide issues which are raised for the first time on appeal. Fullmer v. State Farm Ins. Co., 514 N.W.2d 861, 866 (S.D.1994) (citing Hawkins v. Peterson, 474 N.W.2d 90, 95 (S.D.1991) (additional citations and quotations omitted)). Therefore, we decline to reach Issue 3.

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

      . Because the record available for our review assumes joint ownership and joint liability, and Paulson and Heartland argue nothing to the contrary, we assume judgment was properly entered against both.

      . We urge circuit courts and members of the bar to be aware of this common law rule so that in the future, corporations are adequately represented.


author: /s/Alan C. Page Associate Justice

text:
    Mwati P. MCKENZIE, Petitioner, Appellant. v. STATE of Minnesota, Respondent.
    No. C3-03-321.
    Supreme Court of Minnesota.
    Oct. 27, 2003.
    Mwati Pepi Mckenzie, Stillwater, MN, for Appellant pro se.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   ORDER

A Hennepin County jury found Mwati P. Mckenzie guilty of first-degree murder in violation of Minn.Stat. § 609.185(4) (2002) in connection with the September 25, 1992, murder of Minneapolis police officer Jerry Haaf. The trial court sentenced Mckenzie to life in prison. The facts of the underlying case are set forth in this court’s opinion affirming Mckenzie’s conviction on direct appeal. State v. McKenzie, 532 N.W.2d 210, 213-17 (Minn.1995).

On August 20, 2002, Mckenzie filed this, his third petition for postconviction relief. In the memorandum supporting the petition, Mckenzie alleges that the trial court denied him a fair trial by violating his right to be present at a stage of his trial when the court either did not respond to two notes from the jury or responded to the notes without Mckenzie or his counsel being notified. Mckenzie also alleges that if the trial court responded to the notes the court did so without Mckenzie or his counsel being present and without making a contemporaneous record. Mckenzie now appeals from the postconviction court’s summary denial of the petition without conducting an evidentiary hearing.

Underlying Mckenzie’s claim are two notes sent by the jury foreman to the trial court judge during jury deliberations. The first note, which contains a handwritten notation indicating it was received at 2:25 p.m. on October 20, 1993, reads as follows: “Judge Lynn, we would like some clarifacation [sic] on some of the by laws if possible — pretaing [sic] to First Degree Murder Charge — Aiding & Abeting [sic] Forman [sic] Juror # 8.” The second note, which contains a handwritten notation indicating it was received at 9:15 a.m. on October 21, 1993, reads: “Judge Lynn, Would it be possible to get the original police statements of Loverine Harris[,] Richard[,] and Olivia Gregory The Jury Forman [sic] #8.” The first note was date-stamped as having been filed at 3:34 p.m. on October 26, 1993. The second note was date-stamped as having been filed at 3:35 p.m. on October 26, 1993. The record is silent as to whether Mcken-zie and his counsel were made aware of either note or how, if at all, the trial court responded to either of these notes.

Generally, under Minnesota’s rules of criminal procedure, when a deliberating jury makes a request to review testimony or other evidence or asks to be informed on any point of law, the jury must be brought into open court and the prosecutor and defense counsel must be notified. ' Minn. R.Crim. P. 26.03, subd. 19(2)-(3); see also State v. Sessions, 621 N.W.2d 751, 756 (Minn.2001). The Sixth Amendment to the United States Constitution gives a defendant the right to be present at all stages of trial. Sessions, 621 N.W.2d at 755. “Responding to a deliberating jury’s question is a stage of trial.” Id. Under Minn.Stat. § 590.04 (2002), the district court must grant a hearing on a postconviction petition unless the petition “conclusively showfs] that the petitioner is not entitled to relief.” Ives v. State, 655 N.W.2d 633, 635 (Minn.2003). An “appellant must allege facts that would, if proven by a fair preponderance of the evidence, entitle him to relief.” State v. Rhodes, 627 N.W.2d 74, 86 (Minn.2001). Any doubts as to whether to hold an evidentiary hearing should be resolved in favor of the party asking for the hearing. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).

On the record before us, we are unable to evaluate Mckenzie’s claims with respect to the first and second notes. Therefore, we remand this matter to the postconviction court for the purpose of holding an evidentiary hearing on the issues raised by Mckenzie’s claims with respect to those notes.

Based upon the files, records, and proceeding herein,

IT IS HEREBY ORDERED that we stay this appeal, retain jurisdiction over the case, and remand to the postconviction court for it to conduct an evidentiary hearing and issue findings and conclusions with respect to the trial court’s handling of notes one and two as well as when Mcken-zie and/or his counsel first knew or should have known about the issues raised by the handling of those two notes. Mckenzie shall, within 60 days of entry of the resulting order from the postconviction court, move this court to dismiss or vacate the stay of the appeal. If either party wishes to appeal the decision of the postconviction court, that party shall file and serve in this court a supplemental brief not to exceed seven pages within 60 days after the order dismissing or vacating the stay. The other party shall file and serve its brief, similarly limited in length, in this court 45 days thereafter.

BY THE COURT:

/s/Alan C. Page Associate Justice

      . In our 1995 decision on direct appeal, we spelled Mckenzie’s name "McKenzie.” Based on Mckenzie’s pro se submission to the court below and to this court in the instant matter, it appears that his last name was misspelled. According to those submissions, the correct spelling is "Mckenzie.” The caption above has therefore been changed accordingly.

      . The record reflects a third note from the jury. That note reads: "In order to prove premeditation do we need to decide that they specifically went to the Pizza Shack to kill Officer Jerry Haaf. We are trying to determine premeditation. (RE: Premeditation Pg 19 3rd element). Thanks # 37 Forman [sic] # 8 P.S. Jerome Haaf v. any police officer #37." This note bears a handwritten notation indicating that it had been received at 1:55 p.m. on October 21, 1993, and a date stamp indicating that it was filed on October 26, 1993, at 3:35 p.m. The record reflects that an on-the-record hearing was held with respect to this third note on October 21, 1993. The state, Mckenzie, and his counsel were present at that hearing. The petition did not challenge the handling of this note.


author: ANDERSON, RUSSELL A., Justice. MEYER, Justice BLATZ, Chief Justice

text:
    Richard W. TAYLOR, Appellant, v. STATE of Minnesota, Respondent.
    No. C5-02-746.
    Supreme Court of Minnesota.
    Nov. 6, 2003.

      Mike Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, St. Paul, MN, for Respondent.
    Susan J. Andrews, Assistant State Public Defender, Theodora Gaitas, Assistant State Public Defender, Minneapolis, MN, for Appellant.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellant Richard Taylor entered a guilty plea to criminal sexual conduct in the first degree, in violation of Minn.Stat. § 609.342, subd. 1(a) (2002) (engaging in sexual contact with a person under 13 years of age as defined in section 609.341, subd. 11(c) (2002) and the actor is more than 36 months older than the complainant). By statute, the presumptive minimum sentence for this offense is 144 months, that is, 12 years. Minn.Stat. § 609.342, subd. 2(b) (2002). The district court granted the state’s motion to depart durationally, imposing an executed term of 180 months, a 15-year term. We reduce the sentence to the statutory presumptive term, 144 months.

Taylor was charged by complaint with one count of first-degree criminal sexual conduct for engaging in sexual contact with a three-year-old child who was enrolled in a daycare program Operated by Taylor’s wife in the family home. The charged count alleged that one incident of criminal sexual misconduct occurred on March 16, 2001. Taylor pleaded guilty as charged. During the factual basis inquiry portion of the plea hearing, through leading questions posed by the state, Taylor admitted that he rubbed his penis on the child’s genital area and ejaculated onto a towel. He also admitted that “this happened” one other time, although he could not recall exactly when the other incident occurred.

At sentencing, the state moved for a departure from the 144-month presumptive executed sentence to 180 months; and Taylor, a first-time offender, argued for a dispositional departure. The district court sentenced Taylor to an executed term of 180 months, citing as reasons for the departure multiple incidents of abuse, violation of a position of trust and particular vulnerability of the victim due to age. Taylor’s sentence also included a five-year conditional release term, restitution and a fine. Taylor challenged the durational departure through postconviction proceedings, seeking a reduction of his sentence to the presumptive 144-month term. The postconviction court denied relief. On appeal, the court of appeals affirmed. We granted review.

I.

Minnesota has a commission-based sentencing guidelines system, the goals of which currently are to assure public safety, promote uniformity and proportionality in sentencing, provide greater honesty or “truth in sentencing,” and coordinate sentencing practices with correctional resources. Minn.Stat. § 244.09, subd. 5 (2002); Minnesota Sentencing Guidelines I; see also Richard S. Frase, The Role of the Legislature, the Sentencing Guidelines Commission, and Other Officials under the Minnesota Sentencing Guidelines, 28 Wake Forest L.Rev. 845, 365 (1993). The guidelines commission, in addition to developing and modifying the sentencing guidelines, collects and analyzes information on actual sentencing practices as compared to the sentences recommended by the guidelines and makes recommendations to the legislature on various aspects of sentencing. Minn.Stat. § 244.09, subd. 6 (2002).

The sentencing guidelines are represented by a grid, currently with eleven categories of offense severity levels for the offense of conviction on the vertical axis and seven offender criminal history scores on the horizontal axis. Minnesota Sentencing Guidelines IV. The presumptive guidelines sentence is usually located in the cell of the guidelines grid where the offender’s criminal history score and offense severity level intersect. Id. II.C. As a general rule, the guidelines contemplate that offenders with similar criminal backgrounds who are convicted of similar crimes receive similar sentences; and offenders with more extensive criminal records who commit the most serious and violent offenses receive the greater sentences.

Initially, the guidelines ranked first-degree criminal sexual conduct as a severity level eight offense with a presumptive executed sentence of 43 months for an offender with a zero criminal history score. Minnesota Sentencing Guidelines IV, V (1980). In 1989, in response to public pressure for substantially increased penalties, the guidelines commission doubled sentence durations at severity levels seven and eight for first-time offenders and increased, to a somewhat lesser extent, durations for other offenders. Frase, supra at 360. Consequently, the presumptive sentence for first-degree criminal sexual conduct for a first-time offender was increased from 43 months to 86 months. Minnesota Sentencing Guidelines IV, V (1989). To accommodate the increase in presumptive sentences, the guidelines commission adopted a criminal history weighting scheme aimed, in part, at reducing presumptive commitments for certain property offenders. Frase, supra at 360; Minnesota Sentencing Guidelines II.B.03 (1989).

Prior to August 1, 1994, however, the offense of which Taylor was convicted was a variety of second-degree criminal sexual conduct. Minn.Stat. § 609.343, subd. 1(a) (1992) (sexual contact with a child under the age of 13, where the actor is more than 36 months older than the child). The guidelines ranked the offense at severity level six with a presumptive stayed sentence of 21 months for a first-time offender. Minnesota Sentencing Guidelines IV, V. (1993). In 1994, the legislature distinguished sexual contact involving genital-to-genital contact with a child under the age of 13 years, making it a first-degree offense. Act of May 10, 1994, ch. 636, art. 2, §§ 32, 34, 1994 Minn. Laws 2205-06 (codified at Minn.Stat. § 609.342, subd. 1(a) (1994)). The guidelines ranked the first-degree sexual contact as a severity level seven offense with a presumptive executed sentence of 48 months for a first-time offender, distinguishing first-degree sexual contact from first-degree sexual penetration, the severity level eight offense with an 86-month presumptive prison term. Minnesota Sentencing Guidelines IV, V (1994).

In 2000, the legislature amended the first-degree criminal sexual conduct statute to provide for a minimum presumptive sentence of 144 months, or 12 years. Act of April 3, 2000, ch. 311, art. 4, § 2, 2000 Minn. Laws 211 (codified at Minn.Stat. § 609.342, subd. 2(b) (2000)). Because the 12-year presumptive term applied to the contact variety of first-degree criminal sexual conduct as well as the penetration variety, the net effect was that the presumptive sentence for Taylor’s offense increased from 48 months to 144 months. The low end of the presumptive range for second-degree unintentional murder is 144 months. Minnesota Sentencing Guidelines IV, V (2002).

“Underlying the [guidelines is the notion that the purposes of the law will not be served if judges fail to follow the [guidelines in the ‘general’ case.” State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981). Accordingly, courts may depart from the guidelines only when substantial and compelling circumstances are present. Id. (citing Minnesota Sentencing Guidelines U.D.); see also State v. McIntosh, 641 N.W.2d 3, 8 (Minn.2002) (substantial and compelling circumstances must be present to warrant departures from the presumptive guidelines sentence). “Substantial and compelling circumstances” are those circumstances that make the facts of a particular case different from a typical case. State v. Peake, 366 N.W.2d 299, 301 (Minn.1985) (citing State v. Back, 841 N.W.2d 273, 276 (Minn.1988)). If a departure is taken, the court must provide written reasons “which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable or equitable than the presumptive sentence.” Minnesota Sentencing Guidelines II.D. We review for abuse of discretion the decision of a district court to depart from the presumptive sentence established by the guidelines. McIntosh, 641 N.W.2d at 8. “If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.” Id. (quoting Williams v. State, 361 N.W.2d 840, 844 (Minn.1985)).

II.

Here, the district court concluded there were three aggravating factors warranting an upward departure: (1) “multiple incidents of abuse,” (2) abuse of a position of trust and (3) victim vulnerability. It is generally proper for the court to consider the conduct underlying the charge of which the defendant is convicted; but reliance on other offenses that are not part of the charge and of which the defendant was not convicted is not a permissible basis for durational departure. State v. Peterson, 329 N.W.2d 58, 60 (Minn.1983) (citing State v. Hagen, 317 N.W.2d 701, 703 (Minn.1982), and State v. Barnes, 313 N.W.2d 1, 3 (Minn.1981)); cf. State v. Simon, 520 N.W.2d 393, 394 (Minn.1994) (explaining that court may not base dura-tional departure from presumptive sentence on evidence that defendant could have been convicted of uncharged offense); State v. Arnold, 514 N.W.2d 801, 802 (Minn.1994) (stating that court cannot deprive defendant of guilty plea bargain by relying on underlying conduct supporting dismissed charge). To use prior uncharged sex offenses would amount to improper sentencing for crimes of which the defendant was not convicted. State v. Chase, 343 N.W.2d 695, 697 (Minn.App.1984) (citing Peterson, 329 N.W.2d at 60 and State v. Brusven, 327 N.W.2d 591, 593-94 (Minn.1982)).

It is true, as the dissent indicates, that in certain criminal sexual conduct cases, multiple acts of sexual contact and penetration have served as aggravating factors for enhancement purposes; but in those cases the various acts of sexual abuse were a part of the offense of which the defendant was charged and convicted. E.g., State v. Heinkel, 322 N.W.2d 322, 324 (Minn.1982) (victim forced to submit to various types of sexual contact and penetration over two-hour period); State v. Martinez, 319 N.W.2d 699, 700 (Minn.1982) (over two-hour period, victim com pelled to engage in various types of sexual contact and penetration, culminating in ejaculation onto her body). If, however, the evidence “only supports defendant’s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense for which he is being sentenced in a particularly serious way, then it cannot be relied upon as a ground for departure.” State v. Ott, 341 N.W.2d 883, 884 (Minn.1984) (citations omitted); State v. Northard, 348 N.W.2d 764, 769 (Minn.App.), rev. denied (Minn. Sept. 5, 1984) (explaining that uncharged offense cannot justify a departure). Ae-cordingly, reliance on a prior uncharged sex offense here was improper.

Similarly, the victim’s vulnerability both as to age and the defendant’s position of authority or trust were inappropriate bases for departure where those facts were already taken into account by the legislature in determining the degree of seriousness of the offense. Hagen, 317 N.W.2d at 703 (explaining that age and position of trust unavailable as departure factors for criminal sexual contact with child under age of 13 and actor is 36 months older); see also Peterson, 329 N.W.2d at 60 (stating that youth and position of authority impermissible grounds for departure from presumptive sentence for first-degree criminal sexual conduct); State v. Johnson, 327 N.W.2d 580, 583 (Minn.1982) (explaining that it is unfair to consider age for departure purposes when offense contains an age element). The legislature has set absolute vulnerability for the offense involved here at 13 years, and we are not inclined to tamper with that. It is true that in State v. Partlow, 321 N.W.2d 886 (Minn.1982), we noted “the absolute vulnerability of the 2-year, 10-month-old victim” would justify “an aggravation of sentence.” Id. at 887, n. 1. But Partlow also involved particular cruelty and was decided 20 years ago, during the early stages of the determinate guidelines system in which “real time” sentences revealed relatively short terms typically served and the presumptive term for first-degree criminal sexual conduct was 43 months. Here, although Taylor’s conduct was reprehensible and regrettable, we cannot say that it was an atypical first-degree offense warranting a durational departure from the statutory presumptive 12-year term.

Certainly it is the legislature that defines the conduct that constitutes a criminal offense and fixes the punishment. State v. Olson, 325 N.W.2d 13, 17-18 (Minn.1982) (citing State v. Meyer, 228 Minn. 286, 37 N.W.2d 3 (1949)). But we are charged with the responsibility of ensuring that the punishment “is not inconsistent with statutory requirements, unreasonable, inappropriate, excessive, unjustifiably disparate or not warranted by the findings of fact issued by the district court.” Minn.Stat. § 244.11, subd. 2(b) (2002). Over the last two decades since our initial decisions permitting departures from the guidelines presumptive sentence in first-degree criminal sexual conduct cases, we have seen much change in the laws relating to sex offender risk management, including not only increased presumptive and mandatory sentences for certain sex offenders, but also minimum conditional release terms that increase the term of supervision after release from prison; mandatory registration, community notification and DNA sample requirements that enhance monitoring capability of sex offenders in the community; and finally, expanded possibility of civil commitment for those professionally assessed as being too dangerous to be released into society without successful treatment intervention. Minn.Stat. §§ 609.108, 609.109 (2002) (enhanced statutory máximums, mandatory mínimums and mandatory conditional release terms); Minn.Stat. § 248.166 (2002) (predatory offender registration); Minn. Stat. § 244.058 (2002) (community notification of release of sex offenders); Minn. Stat. § 609.117 (2002) (mandatory provision of DNA samples from certain offenders including those convicted of criminal sexual conduct); Minn.Stat. § 253B.02, subds. 18b, 18c (2002) (civil commitment). It is within this framework of risk management tools not in place at the time of our prior decisions that district courts now exercise discretion in sentencing and that we discharge our responsibility under Minn.Stat. § 244.11 in reviewing upward durational sentencing departures.

In conclusion, for this case, we hold that the departure from the statutory presumptive minimum executed sentence was improper. Accordingly, Taylor’s executed sentence is reduced to 144 months, the statutory presumptive minimum term.

Affirmed as modified.

MEYER, Justice

(dissenting).

I respectfully dissent. I would hold that the district court erred in relying on two of the three aggravating factors to support an upward departure in Taylor’s sentence, and remand for reconsideration of the departure in light of the remaining factor.

I would analyze this case under our well-accepted principle of appellate review that a district court’s sentencing departure is evaluated for an abuse of discretion. See State v. Thao, 649 N.W.2d 414, 421 (Minn.2002) (stating decision to depart from presumptive sentence is within district court’s discretion if substantial and compelling reasons are articulated); State v. Misquadace, 644 N.W.2d 65, 68 (Minn.2002) (stating district court’s decision to depart will not be disturbed absent abuse of discretion); State v. Pickett, 358 N.W.2d 38, 39 (Minn.1984) (stating decision to depart is for the trial court to exercise). This discretion is no mere formality. As with evidentiary issues, the trial judge “sits with a unique perspective on all stages of a case, including sentencing, and the trial judge is in the best position to evaluate the offender’s conduct and weigh sentencing options.” State v. Hough, 585 N.W.2d 393, 397 (Minn.1998).

Here, I concur with the majority’s view that two of the factors — the age of the victim and the abuse of a position of trust — were impermissible reasons for departure. I would not conclude, however, that the multiple incidents of abuse that occurred in this case cannot support an upward departure.

The complaint against Taylor noted that the victim in this case, three-year-old L.E.P., disclosed that Taylor’s assaults on her had “happened more than one time.” The majority offers a number of reasons why Taylor’s admission of multiple incidents of abuse cannot support an upward departure. The decision notes that a sentencing court may not rely upon offenses that do not form the basis of a conviction. See, e.g., State v. Hagen, 317 N.W.2d 701, 703 (Minn.1982). Similarly, the majority asserts that a durational departure may not be based upon the possibility that the defendant could have been convicted of an uncharged offense. State v. Simon, 520 N.W.2d 393, 394 (Minn.1994). Finally, the majority, relying upon State v. Arnold, 514 N.W.2d 801, 802 (Minn.1994), holds that Taylor cannot be deprived of the bargain of his guilty plea by the trial court’s reliance on underlying conduct supporting a dismissed charge.

This last reason is the easiest to dismiss. Arnold involved a defendant charged with five offenses committed during three robberies. 514 N.W.2d at 801. One of the robberies involved an allegation that Arnold had sexually touched the victim during the crime. Id. Arnold entered into a plea bargain in which he admitted to the robberies in exchange for dismissal of the sex offense charge, a charge that he had consistently denied. Id. In sentencing Arnold, the trial court departed upward and based the departure on the allegation Arnold had sexually touched a victim during the robbery. 514 N.W.2d at 802. The situation in Arnold, then, was one where the trial court impermissibly relied upon a dismissed allegation — the dismissal of which was part and parcel of the plea bargain.

Such a scenario is obviously not the case here. Unlike Arnold, during his plea hearing Taylor admitted to another earlier incident. It was therefore no mere unproven allegation, as was the case in Arnold. Moreover, our concern in Arnold centered around the fact that the trial court’s action essentially deprived Arnold of the benefit of his plea bargain. Arnold at 801-02. Here, Taylor received a sentence within the range he bargained for.

The majority’s reliance on State v. Peterson is similarly misplaced. In Peterson, the defendant was charged with criminal sexual conduct, and Spreigl evidence was introduced to show that Peterson had used his position of authority to induce young people to have sexual contact with him. 329 N.W.2d 58, 59 (Minn.1983). In sentencing Peterson, the trial court imposed consecutive, rather than concurrent, sentences. Id. The trial court stated on the record that the consecutive sentence was permissible because Peterson had used his position of authority to induce both the victim of the charged offense and the victims of the Spreigl offenses. Id. We reversed, stating that “in relying on the Spreigl offenses, the trial court relied on other offenses with which defendant apparently was not charged and of which defendant was not convicted.” Id. at 60.

Taylor’s case is dissimilar. In contrast to the facts set forth in Peterson, proof of Taylor’s earlier criminal sexual conduct was provided not by untested, uncharged, possibly disputed Spreigl evidence relating to victims other than L.E.P., but instead by Taylor’s own admission at his plea hearing that he had assaulted L.E.P. on more than one occasion.

A third case relied upon by the majority, State v. Simon, is also inapposite. In Simon, the defendant pled guilty to second-degree assault after shooting his victim. Simon, 520 N.W.2d at 393-94. Second-degree assault, however, contains two statutory provisions, one of which is less severe than the other as it does not include the element of substantial bodily harm. Id. at 394. See also Minn.Stat. § 609.222 (1992). Simon was charged under the less severe provision. Simon, 520 N.W.2d at 394. At Simon’s sentencing, however, the state requested the trial court to impose a sentence double that of the presumptive sentence and to base the departure on the fact that the assault resulted in substantial bodily harm to the victim. Id.

In reversing, we noted that we disapproved of the state’s actions and indicated that prosecutors were not free to circumvent the strictures of the sentencing guidelines by charging Simon under a less serious provision and then using an element of the more serious provision to request an enhancement for sentencing. Id. We further cautioned that “the state should not be able to use the fact that it might have been able to obtain a conviction of a greater offense * * * to support the departure.” Id. Thus, Simon is most properly read as a caution against deliberate undercharging by the state.

There is no allegation that undercharging is what occurred here. Certainly L.E.P.’s allegation appears in the complaint, but there is no contention before us that Taylor could have been convicted of both crimes. Taylor was not charged under a different statutory provision that considers multiple incidents as an element, nor could he have been. That provision, Minn. Stat. § 609.342, subd. l(h)(iii) (2002), applies only to those individuals who have a “significant relationship” to the victim, defined as relatives or adults who reside, at least intermittently, in the same dwelling as the victim. See Minn.Stat. § 609.341, subd. 16 (2002). So, unlike Peterson, this is not a case where Taylor would serve a longer sentence if charged under another applicable provision. Quite simply, there was no other applicable provision.

The majority correctly notes that generally “the sentencing court may not consider evidence that points to the defendant’s guilt of some other offense but does not support the conclusion that the defendant committed the instant offense, for which he is being sentenced.” State v. Cermak, 344 N.W.2d 833, 837 (Minn.1984); see also State v. Ott, 341 N.W.2d 883, 884 (Minn.1984). However, this does not necessarily suggest that the sentencing judge’s reliance on the prior uncharged assault was improper. If the defendant admits to the underlying conduct, a sentencing court may generally consider the course of conduct underlying an offense including uncharged conduct “in order to reach the conclusion that the defendant’s conduct was sufficiently serious to justify the departure.” Cermak, 344 N.W.2d at 838. In this case, Taylor admitted to committing the earlier assault. The uncharged assault involved the same victim and the same behavior, and occurred within approximately a month of the second assault. These facts are sufficient to permit consideration of the earlier assault as part of Taylor’s course of conduct. It seems ironic and incongruent that by today’s holding we allow for upward durational departures for multiple penetrations of one victim over the course of several hours, while barring upward durational departures for admitted sexual contact of one victim occurring on separate days.

Accordingly, I would hold that an upward durational departure was appropriate, but would remand and direct the district court to reconsider the sentence without regard to the factors of age of the victim and the abuse of a position of trust.

BLATZ, Chief Justice

(dissenting).

I join in the dissent of Justice Meyer.

      . Prior to the entry of the plea, the court explained to Taylor that at sentencing he would be free to argue for a dispositional or downward durational departure and the state would cap its request for an upward durational departure at 180 months. Taylor then was sworn in, and the following exchange occurred:
      THE COURT: To the charge from Ramsey County, criminal sexual conduct in the first degree, with a maximum sentence of thirty years and/or a fine of forty thousand dollars, on March 16, 2001, how do you plead, guilty or not guilty.
      THE DEFENDANT: Guilty.

      . During the factual basis inquiry, the following exchange between the prosecutor and Taylor took place:
      Q. Mr. Taylor, how many times has this happened?
      A. Twice.
      Q. When was the second or other incident?
      A. I don’t know.
      ch Was it within a month of this one?
      A. Probably within a month.
      Q. Where did that one happen?
      A. Same bathroom.
      Q. Was the behavior the same as—
      A. Yes.
      The state did not charge Taylor with the earlier incident but did refer to it in the probable cause portion of the complaint.

      . In 2002, the guidelines added a new offense category for felony DWI and ranked the offense at a severity level of seven; this in turn, led to the elevation of what was formerly the level seven category, where the first-degree sexual contact crime was ranked, to level eight and the former category eight, where the other first-degree sexual conduct crimes were ranked, to level nine. The presumptive sentences for first-time offenders in categories eight and nine remained at 48 months and 86 months respectively, with exceptions for the statutory presumptive minimum terms for specified criminal sexual conduct crimes. Minnesota Sentencing Guidelines IV, V (2002).

      . The dissent distinguishes cases in which conduct based upon dismissed charges could not be the basis for additional confinement; but it would be even more true that conduct that is never charged cannot be the basis for additional confinement.

      . Furthermore, allowing a departure based upon the elicitation of an admission to an uncharged prior offense during a factual basis inquiry at the guilty plea hearing undermines the system. A valid guilty plea must be accurate, voluntary and intelligent. State v. Ecker, 524 N.W.2d 712, 716 (Minn.1994). A proper factual basis must be established for a plea to be accurate. Id. The purpose of the accuracy requirement is to protect the defendant from the conviction of a greater offense by guilty plea than would have been possible had he exercised his right to trial. State v. Trott, 338 N.W.2d 248, 251 (Minn.1983). Allowing the state to lay the groundwork for sentencing enhancement during a factual basis inquiry by asking about other offenses not charged places the defendant in a worse position than if he had gone to trial and exercised his Fifth Amendment right to remain silent.

      . Experience has also shown that courts tend to view criminal sexual assaults by strangers as more serious and aggravated, thereby justifying durational departures. See, e.g., State v. Mortland, 399 N.W.2d 92, 94 (Minn.1987) (child snatched from neighborhood park); State v. Norton, 328 N.W.2d 142, 144 (Minn.1982) (young child snatched from own yard). Departures are intended for a small number of cases. State v. Misquadace, 644 N.W.2d 65, 71 (Minn.2002). Inasmuch as the guidelines endeavor to limit departures to those circumstances that make the facts of a particular case different from a typical case, it would be difficult in most cases to reconcile departures based on both stranger sexual assaults and the more typical position-of-trust assaults.