author: VANDE WALLE, Chief Justice.

text:
    2001 ND 96
    Richard SOLLIN and Linda Sollin, Plaintiffs and Appellants v. Dale WANGLER and Pius Wangler, Defendants and Appellees.
    No. 20000284.
    Supreme Court of North Dakota.
    May 22, 2001.

      Douglas J. Nill (argued), Douglas J. Nill Law Office, Minneapolis, MN, for plaintiffs and appellants.
    Lee J. Balerud (appeared), Minot, for plaintiffs and appellants.
    Jerry W. Evenson, Zuger Kirmis & Smith, Bismarck, for defendants and ap-pellees.
   VANDE WALLE, Chief Justice.

[¶ 1] Richard and Linda Sollin appealed from an order denying a motion for new trial in their personal injury action against Dale and Pius Wangler. We conclude the trial court’s failure to inform the jury, sua sponte, about the effect of its answers to comparative fault questions on its award of damages is not fundamental error requiring a new trial, and the court did not abuse its discretion in denying the motion for new trial. We affirm.

I

[¶ 2] On February 13, 1995, Richard Sollin was employed by David Migler to operate Migler’s hay grinder and grind straw for Dale and Pius Wangler. While the grinder was operating, Sollin began greasing the grinder in preparation for the next grinding job at another location. Dale Wangler, who had been using a tractor-loader to load the grinder with large straw bales, attempted to place another bale in the grinder tub. The 1,200-pound bale fell out of the tub and struck Sollin, severely injuring him. In January 1999, Sollin and his wife, Linda Sollin, sued the Wanglers, claiming Dale negligently operated the tractor-loader and Pius negligently instructed Dale about the grinding process. The Sollins sought damages for Richard’s injuries and Linda’s loss of consortium. The Wanglers alleged Richard’s own negligence in approaching the grinder tub to grease the machine while it was still operating proximately caused his injuries.

[¶ 3] During the jury trial, the Sollins did not request an instruction which would have advised the jury how its comparative fault findings might impact an award of damages. Under North Dakota’s comparative fault law, the Sollins would not be able to recover damages if their fault was “as great as the combined fault of all other persons” who contributed to the injury. N.D.C.C. § 32-03.2-02. As requested by the Sollins, the trial court instructed the jury:

ALTERNATIVE FINDINGS
If, adhering to these instructions, you find that damages of Plaintiff were proximately caused by the combined negligence of both Plaintiff and Defendant, you will then return a Special Verdict determining the amount of those damages, without dimunition for negligence and determining the percentages of fault of each party which proximately caused the damages claimed.

[¶ 4] The jury retired to deliberate at 4:40 p.m. on December 10, 1999. At 6:35 p.m., the court received a communication from the jury, stating “[w]e feel both parties are at fault,” and requesting clarification on how to reflect that conclusion in the special verdict form. The court answered the question after consulting with counsel for the parties. At 8:29 p.m., the court received another communication from the jury: “Judge. Is the % of fault going to damage awards.” The transcript discloses, “[b]y agreement, the Court and counsel handled it off the record.” The Sollins’ counsel later attested in an affidavit the trial court told the jury “to follow the instructions that were given after closing arguments.”

[¶ 5] At 8:59 p.m., the jury returned its verdict, finding Dale Wangler 50% at fault, Pius Wangler 0% at fault, Richard Sollin 50% at fault, and David Migler, a non-party, 0% at fault. The jury found Linda Sollin had incurred no damages, but found Richard Sollin had incurred $100,000 in past and future economic and noneconomic damages. Next to the line where the jury awarded Richard $8,000 for “Future Medical Expenses,” the jury noted: “(to be used for Rehab).” Because Sollin’s fault wras as great as Wangler’s fault, the trial court dismissed with prejudice the Sollins’ claims against the Wanglers.

[¶ 6] The Sollins moved for a new trial, arguing the trial court erred as a matter of law in failing to comply with “procedural mandates” and to explain to the jury, upon the jury’s request, how its answers to the comparative fault questions would affect the award of damages. The Sollins argued they were denied fundamental constitutional rights by the trial court’s failure to do so. The trial court denied the motion, ruling the Sollins had not shown they were entitled to a new trial under any of the grounds set forth in N.D.R.Civ.P. 59(b). The court determined the instructions given were adequate and counsel could have explained to the jury during closing arguments, but did not, the relationship between comparative fault findings and damages. The Sollins appealed from the order denying their motion for new trial.

II

[¶ 7] The Sollins argue the trial court erred in denying their motion for new trial because a fundamental error of law and manifest injustice occurred in this case.

[¶8] We review a trial court’s denial of a N.D.R.Civ.P. 59(b) motion for new trial under the abuse of discretion standard. Ali by Ali v. Dakota Clinic, Ltd., 1998 ND 145, ¶ 5, 582 N.W.2d 653. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Schneider v. Schaaf, 1999 ND 235, ¶ 12, 603 N.W.2d 869. The party seeking relief has the burden to affirmatively establish an abuse of discretion. Braunberger v. Interstate Engineering, Inc., 2000 ND 45, ¶ 7, 607 N.W.2d 904.

[¶ 9] Rule 59(b)(7), N.D.R.Civ. P., permits a new trial when errors in law occur at trial and are excepted to, “when required.” The error must be “patent, obvious, or evident from the record,” Merrill Iron & Steel, Inc. v. Minn-Dak Seeds, Ltd., 334 N.W.2d 652, 655 (N.D.1983), and must “materially affect[ ] the substantial rights of a party.” Schaefer v. Souris River Telecommunications Co-op., 2000 ND 187, ¶ 14, 618 N.W.2d 175; N.D.R.Civ.P. 61. Rule 49(a), N.D.R.Civ. P., requires a court to “give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue.” Under N.D.R.Civ.P. 51(c), however, to preserve for appellate review an alleged error regarding instructions to the jury, counsel “has the burden of objecting not only to parts included in the proposed instructions but also to omissions in the proposed instructions.” Leingang v. George, 1999 ND 32, ¶ 16, 589 N.W.2d 585. Because the Sollins neither requested an instruction on how the comparative fault answers would affect the award of damages, nor objected to its omission, the issue is whether the trial court’s failure to instruct the jury, upon the jury’s questioning, was error materially affecting the Sollins’ substantial rights.

A

[¶ 10] North Dakota’s former comparative negligence statute, N.D.C.C. § 9-10-07, allowed a jury to be informed of how comparative fault answers would affect an award of damages by providing “[u]pon the request of any party, this section shall be read by the court to the jury and the attorneys representing the parties may comment to the jury regarding this section.” This provision was added to the former statute when it was enacted in 1973 “so the jury knows what has happened.” Hearing on H.B. 1509 Before the Senate Judiciary Committee, 43rd N.D. Legis. Sess. (February 27, 1973) (testimony of A1 Wolf). When N.D.C.C. § 9-10-07 was effectively repealed in 1987, see 1987 N.D. Sess. Laws ch. 404, § 15; 1993 N.D. Sess. Laws ch. 324, § 1, and replaced with the new modified comparative fault law codified at N.D.C.C. § 32-03.2-02, the provision allowing, upon request, the court to inform the jury and the attorneys to comment to the jury about the law was omitted from the new legislation. The legislative history is silent on the reason for its omission from N.D.C.C. § 32-03.2-02.

[¶ 11] The current North Dakota Pattern Jury Instructions contain a special verdict form, N.D.J.I. — Civil C-90.56, which parenthetically states “[t]he Court may wish to include an instruction here concerning the effect of the allocation of fault in a particular case and whether, depending upon that allocation, the Jury should answer the damages questions.” The pattern jury instructions are published by the State Bar Association of North Dakota in conjunction with the North Dakota Pattern Jury Instruction Commission and caution users the instructions are “neither a restatement nor an encyclopedia of the prevailing law.” Counsel for the Sol-lins requested N.D.J.I. — Civil C-90.56, and submitted a special verdict form based on it, but did not include an instruction based upon the bracketed language regarding the court’s discretion to instruct the jury-on the effect of the allocation of fault on damages.

[¶ 12] This Court has not addressed whether a jury should be told how its liability apportionment will affect an award of damages since the statutory authority to do so was repealed in 1987. Before N.D.C.C. § 9-10-07 was enacted in 1973, this Court held it was reversible error for counsel to comment on, or the trial court to advise the jury about, the ultimate result and legal effect of special verdict findings. See Ferderer v. Northern Pacific Railway Co., 77 N.D. 169, 185, 42 N.W.2d 216, 225 (1950); Huether v. McCaull-Dinsmore Co., 52 N.D. 721, 735, 204 N.W. 614, 619 (1925); Reichert v. Northern Pacific Railway Co., 39 N.D. 114, 147, 167 N.W. 127, 138 (1917); Morrison v. Lee, 13 N.D. 591, 599, 102 N.W. 223, 225 (1904). The rationale for this position was explained in Morrison, 13 N.D. at 599, 102 N.W. at 225:

The object of the law is to secure fair and impartial answers to the questions submitted, “free from bias or prejudice in favor of either party or in favor of a particular result.” The jury should not, therefore, be informed, either by the instructions or by the form of the questions, how any particular answer will affect the case, or what judgment will follow in consequence of it, “for to impart such information would almost necessarily defeat the object intended to be secured by a special verdict.” And for this reason it is error to inform the jury under what circumstances the plaintiff can or cannot recover.

This reasoning appears to have been the prevailing rule at the time. See Annot., Reversible effect of informing jury of the effect that their answers to special interrogatories or special issues may have upon ultimate liability or judgment, 90 A.L.R.2d 1040 (1963).

[¶ 13] The overwhelming modern trend is away from the “blindfold rule” in comparative negligence jurisdictions and toward permitting the jury to be informed of the legal consequences of its special verdict answers through an “ultimate outcome” instruction because the jury’s lack of knowledge does not eliminate sympathy and bias, but merely insures that the jury makes its decision in greater ignorance. Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616, 619 (1998). The Idaho Supreme Court’s often-cited opinion in Seppi v. Betty, 99 Idaho 186, 579 P.2d 683, 690-91 (1978), reasons:

It would be incredibly naive to believe that jurors, after having listened attentively to testimony of the parties and a parade of witnesses and after having heard the arguments of counsel, will answer questions on a special verdict form without giving any thought to the effect those answers will have on the parties and to whether their answers will effectuate a result in accord with their own lay sense of justice. With respect to most questions, the jury would have to be extremély dullwitted not to be able to guess which answers favor which parties. In those instances where the legal effect of their answers is not so obvious, the jurors will nonetheless speculate, often incorrectly, and thus subvert the whole judicial process.
The rule against informing the jury of the effect of a 50-50 allocation of negligence of course places the defense counsel in a position to exploit the sense of equity implicit in such a finding without the plaintiffs counsel being able to argue the critical legal import of such a determination. Thus, the uninformed jury could easily deceive itself into believing that it has decided that the defendant should pay for half of the plaintiffs damages when in fact it has determined that the plaintiff will recover nothing at all.
Contrast that situation to one in which the jury is composed of members at least some of whom have learned from prior jury experience or other sources how the comparative negligence law in Idaho actually operates. A reminder in the deliberations by one of the jurors that a finding of 50% negligence will result in no recovery by the plaintiff is likely to cause the jurors to examine the facts more closely before quickly coming to the appealing 50-50 allocation of negligence. Thus, it is not unlikely that in a number of cases whether the plaintiff recovers may depend as much upon how “courtwise” the members of the jury are as upon how the jurors view the facts. In short, not informing the jury of the effect of a 50% negligence finding in many cases is likely to cause an unjust result and produce a judgment which does not reflect the wisdom of the jury or their view of the facts, but only their ignorance of Idaho law.

[¶ 14] Based on this reasoning, many jurisdictions now allow the jury to be informed of the legal consequences its special verdict answers will have on damages. Some jurisdictions have adopted the rule by statute or rule of court. See, e.g., Iowa Code Ann. § 668.3(5) (West 1998); Neb. Rev.Stat. § 25-21,185.09 (1995); Or.Rev. Stat. § 18.480(2)(1999); Wyo. Stat. Ann. § l-l-109(c)(i)(B) (Michie 1999); Minn. R. Civ. P. 49.01(b) (West 2001); Tex.R. Civ. P. 277 (West 2001). Other jurisdictions have adopted the rule by judicial decision. See, e.g., Kaeo v. Davis, 68 Haw. 447, 719 P.2d 387, 396 (1986); Thomas v. Board of Township Trustees, 224 Kan. 539, 582 P.2d 271, 281 (1978); Thurston v. Ballou, 23 Mass.App.Ct. 737, 505 N.E.2d 888, 891 (1987); Martel v. Montana Power Co., 231 Mont. 96, 752 P.2d 140, 146 (1988); Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322, 327 (1980); Schabe v. Hampton Bays Union Free Sch. Dist., 103 A.D.2d 418, 480 N.Y.S.2d 328, 336 (1984); Peair v. Home Ass’n of Enola Legion No. 751, 287 Pa.Super. 400, 430 A.2d 665, 671-72 (1981); Dixon v. Stewart, 658 P.2d 591, 597 (Utah 1982); Adkins v. Whitten, 171 W.Va. 106, 297 S.E.2d 881, 884 (1982).

[¶ 15] If the Legislature’s repeal of N.D.C.C. § 9-10-07 revived the prece-dential value of this Court’s decisions in Ferderer, Huether, Reichert and Morrison, see Reeves & Co. v. Russell, 28 N.D. 265, 280-81, 148 N.W. 654, 660 (1914); North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 853 (Fla.1962); 2B N. Singer, Statutes and Statutory Construction § 50:01 (6th ed.2000), an issue we need not decide, we overrule those decisions to the extent they indicate it is reversible error to advise or mention to a jury the legal effect of its special verdict findings. If, on the other hand, the repeal of N.D.C.C. § 9-10-07 did not revive this Court’s prior caselaw on the subject, see N.D.C.C. § 1-02-19; In re Estate of Jensen, 162 N.W.2d 861, 862 Syll. ¶ 4 (N.D.1968), the issue was unsettled in this jurisdiction at the time of the Sollins’ trial. The logic of the modern trend is compelling and we will now follow that trend.

B

[¶ 16] However, the Sollins have not cited, nor have we found, any cases holding a trial court’s failure to give an unrequested instruction to the jury on the effect of its answers to comparative fault questions on the plaintiffs damages is fundamental error requiring a new trial. Perhaps the closest cases they cite are Wheeler, 254 Neb. 232, 575 N.W.2d 616, and Halla Nursery v. Baumann-Furrie & Co., 438 N.W.2d 400 (Minn.App.1989), but both cases are distinguishable. The trial courts in those cases had granted motions for new trial either for inadequately instructing or for failing to instruct the jury on the effect of the jury’s answers to comparative fault questions in violation of a statutory provision or rule of court. The Nebraska Supreme Court in Wheeler, 575 N.W.2d at 621, and the Minnesota Court of Appeals in Halla Nursery, 438 N.W.2d at 404, affirmed, concluding the respective trial courts had not abused their discretion in granting the motions for new trial. Not only are these cases distinguishable because of the Nebraska statutory provision and Minnesota rule of court involved, but because the appellate courts affirmed trial court grants of motions for new trial. Moreover, the decision of the Minnesota Court of Appeals in Halla Nursery was ultimately reversed by the Minnesota Supreme Court because “the trial court erred in concluding that its failure to instruct the jury on the effects of comparative fault was a fundamental error of law requiring a new trial.” Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 912 (Minn.1990).

[¶ 17] Several of the cases the Sollins rely on for the proposition a court should inform the jury of the ultimate outcome of its comparative fault findings have arisen in the procedural posture of arguments on appeal that courts erroneously gave the instruction, and the appellate courts ruling the trial courts did not err in doing so. See, e.g., Luna v. Shockey Sheet Metal & Welding Co., 113 Idaho 193, 743 P.2d 61, 65 (1987); Thomas, 582 P.2d at 281; DeCelles v. State ex rel. Depart, of Highways, 243 Mont. 422, 795 P.2d 419, 420 (1990); Schabe, 480 N.Y.S.2d at 336; Smith v. Gizzi, 564 P.2d 1009, 1013 (Okla.1977); Peair, 430 A.2d at 672; Adkins, 297 S.E.2d at 882. Rather than adopt a per se rule requiring an ultimate-outcome instruction in every comparative negligence case, courts usually hold the instruction must be given if requested, and only if the court believes the instruction will not confuse or mislead the jury. See, e.g., Kaeo, 719 P.2d at 396; Thurston, 505 N.E.2d at 891; Martel, 752 P.2d at 146; Roman, 413 A.2d at 327; Dixon, 658 P.2d at 596; Adkins, 297 S.E.2d at 884. See also Luna, 743 P.2d at 65 (holding trial court is not required, but has discretion whether to inform jury of legal effect of findings contingent on whether instruction might confuse or mislead the jury); Seppi 579 P.2d at 692 (same).

[¶ 18] Because this line of authority is consistent with N.D.R.Civ.P. 49(a) on special verdicts, we conclude a trial court should give an ultimate-outcome instruction in a comparative fault case if it is properly requested and the court determines the instruction will not confuse or mislead the jury.

C

[¶ 19] The Sollins argue the trial court had a duty to give an ultimate-outcome instruction in this case because of the jury’s “specific request” during deliberations and the “compelling” evidence of its misunderstanding the effect its comparative fault findings would have on the damage award.

[¶ 20] In the two cases cited by the Sollins involving inquiries from the jury, the inquiries were explicit or strongly implied confusion and speculation, and the appellate courts held the trial courts did not err in instructing the jury as to the ultimate outcome. See Thurston, 505 N.E.2d at 891; Schabe, 480 N.Y.S.2d at 337. Here, the jury asked the judge “[i]s the % of fault going to damage awards.” Presumably, the trial court and counsel interpreted the question as requesting an explanation of the “Alternative Findings” instruction, which told the jury to not diminish its damages findings based upon its fault findings. The trial court told the jury to follow the instructions that were given. The “Alternative Findings” instruction requested by the Sollins, which required the jury to determine the amount of damages regardless of the amount of the parties’ negligence, conflicts in theory with the substance of an ultimate-outcome instruction. The trial court cannot be faulted for failing to interpret the question as a specific request for an ultimate-outcome instruction when counsel for the Sollins did not interpret the question as requesting that information.

[¶ 21] Although the jury’s handwritten notation in the special verdict form directing Richard Sollin to use $8,000 “for Rehab,” a request not within the jury’s province to direct, suggests the jury might have believed Sollin would receive a recovery, the jury was required by the instructions to determine damages without diminution for the parties’ negligence. It is also plausible the jury was merely following the instructions without regard to whether Sollin actually recovered. Speculation is insufficient to establish jury confusion requiring a new trial. See Regan Farmers Union Co-op. v. Swenson, 253 N.W.2d 327, 332 (N.D.1977).

[¶ 22] Under these circumstances, the trial court was not required to sua sponte instruct the jury on the effect of its comparative fault questions on the award of damages.

D

[¶ 23] In Rau v. Kirschenman, 208 N.W.2d 1, 9 (N.D.1973), this Court held that “failure to instruct the jury with respect to a rule that is not the law in North Dakota is not a fundamental or highly prejudicial error such that our failure to review it in the absence of objection at trial would result in a gross miscarriage of justice.” See also Kirchoffner v. Quam, 264 N.W.2d 203, 207 (N.D.1978).

[¶ 24] In this case, the Sollins did not request an ultimate-outcome instruction before trial, even though a pattern jury instruction requested by them suggested it might be appropriate. The Sollins did not object to the omission of the instruction before the jury deliberated. The Sollins did not request the instruction when the jury submitted its question during deliberations. At best, the issue whether an ultimate-outcome instruction can be given in North Dakota was unsettled when the trial was held. At worst, the existing caselaw in North Dakota indicated the giving of such an instruction was reversible error. Under these circumstances, we conclude the trial court’s failure to inform the jury, sua sponte, about the effect of its answers to comparative fault questions on its award of damages is not error of constitutional magnitude under N.D. Const, art. I, § 9, see Andrews v. O’Heam, 387 N.W.2d 716, 723 (N.D.1986), or fundamental error affecting substantial rights and requiring a new trial.

[¶ 25] We conclude the trial court did not abuse its discretion in denying the Sollins’ motion for new trial.

Ill

[¶ 26] The order denying the motion for new trial is affirmed.

[¶ 27] KAPSNER, MARING, NEUMANN, and SANDSTROM, JJ„ concur.


source: Caselaw Access Project

author: KONENKAMP, Justice. GILBERTSON, Justice

license: Public Domain

text:
    2001 SD 56
    WATERTOWN COOP. ELEVATOR ASSOCIATION, License No. 05-004833-ST, 14-005973-ST, 14-006274-ST, 14-006572-ST, 14-007590-ST, 18-003130-ST, 18-003131-ST, Appellee, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Appellant. Farmers Union Oil Co. (Wecota/Faulkton/Onaka) License No. 25-001-46-215815E-ST-001, 25-002-46021581E-ST-001, Appellee, v. South Dakota Department of Revenue, Appellant.
    No. 21570.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2001.
    Decided May 2, 2001.
    Rehearing Denied June 8, 2001.

      Robert C. Riter, Jr. of Riter, Mayer, Hofer, Wattier & Brown, Pierre, South Dakota, for appellees.
    Mark Barnett, Attorney General, Pierre, South Dakota, Harvey M. Crow, Jr., Special Assistant Attorney General, Department of Revenue, Rapid City, South Dakota, for appellant.
   KONENKAMP, Justice.

[¶ 1.] In this administrative proceeding, we (1) review the timeliness of the appeal, (2) decide whether charges for providing production specialists may be taxed as payments for “services” under SDCL 10-46-2.1, and (3) examine a finding by the circuit court classifying as arbitrary the Secretary of Revenue’s decision. We conclude that the appeal is timely, and we reverse the circuit court’s ruling that the charges were not taxable.

Background

[¶ 2.] Watertown Coop. Elevator Association and Farmers Union Oil Co. (the taxpayers) sell agronomy products to farmers and ranchers. These products include seed, feed, fertilizer, and chemicals. Ce-nex/Land O’Lakes Agronomy Company and Harvest States Cooperative distribute the products at wholesale to the taxpayers. As part of a separate contract with the taxpayers, these distributors provide production specialists to advise the taxpayers’ customers on which products to buy and how best to use them. The contract states that the distributor will “assign a Crop Production Specialist (CPS) to [the taxpayers] to provide services.” At all times the Crop Production Specialist or Livestock Production Specialist remains an employee of the distributor. The taxpayers reimburse the distributors for all actual expenses of the production specialists, including salary, social security, income tax withholding, workers’ compensation, equipment leases, travel, and other incidental expenses.

[¶ 3.] The production specialists spend eighty percent of their time in the field making contact with farmers and ranchers, attempting to sell agronomy products. Orders taken by the specialists are processed through the taxpayers’ retail businesses. Specialists advocate the sale of only their particular distributor’s products. While in the field, they gather information concerning soil or livestock and make recommendations about particular products. They may also monitor the use of these products, make return visits, and assist a farmer or rancher in developing a management program, including a profit analysis. The taxpayers do not charge their customers a separate fee for these services. Instead, the cost of maintaining the production specialist program is built into the purchase price of their products.

[¶ 4.] The taxpayers benefit by having “professional salespeople highly trained that [can] help them sell their products at the local [level].... ” Since the production specialist’s job objective is to increase the sale of products, the specialist works to enlarge the taxpayers’ customer base and to maintain and service current accounts. The emphasis of this program is to sell a higher volume of product, which, benefits the taxpayers and the distributors.

[¶ 5.] The Department of Revenue conducted a sales and use tax audit of the taxpayers’ books and records. The audit of Watertown Coop. Elevator’s books covered September 1993 through August 1996. Afterwards, the Department issued a certificate of assessment finding a use tax due on fees Watertown Coop, paid for production specialist services. The audit of Farmers Union Oil Co. covered the same period with the same result. Both companies paid the entire assessment but contested the validity of the use tax. As these appeals have similar facts and issues, they were consolidated. Following an administrative hearing, the hearing examiner issued a ruling favorable to the taxpayers. The examiner’s findings were submitted to the Secretary of Revenue for review. The Secretary rejected the proposed findings as authorized by SDCL 1-26D-6 and substituted his own findings, conclusions, and final decision.

[¶ 6.] The taxpayers received notice of entry of the Secretary’s decision on July 12, 1999. On August 4, the taxpayers’ counsel filed a notice of appeal in the Hughes County Circuit Court and charged the filing fee to the account counsel’s firm maintained with the clerk’s office. The clerk of courts later billed counsel’s firm. The billing was completed beyond the thirty-day deadline allowed for appeals. The Department moved to dismiss, arguing that the appeal was not perfected within thirty days of notice of entry under SDCL 1-26-31. The motion was denied. The court heard the case on its merits and found that the Secretary acted arbitrarily in rejecting the hearing examiner’s findings without giving adequate reasons in writing. See SDCL 1-26D-8. In so ruling, the court found that the Secretary “failed to give proper deference to the hearing examiner’s decision and ... findings as to the credibility of witnesses and resolution of conflicts in the evidence.” The court found that the services rendered by production specialists were “directly related to the sale of the taxpayers’ products” and thus are exempt because the sales of agronomy products are exempt. The Department appeals.

1. Timeliness of Appeal

[¶ 7.] The Department moved the circuit court to dismiss the taxpayers’ appeal, claiming that it was not perfected within the thirty-day period provided for in SDCL 1-26-31. Specifically, the Department asserted that the practice of charging the filing fee to a law firm’s account at the clerks’ office does not perfect an appeal unless payment is actually made within the thirty day appeal period. The Department anchors its claim on our holding in Hansen v. South Dakota Board of Pardons and Paroles, 1999 SD 135, 601 N.W.2d 617. We review the grant or denial of a motion to dismiss as a legal question, asking, “is the pleader entitled to judgment as a matter of law?” White Eagle v. City of Fort Pierre, 2000 SD 34, ¶ 4, 606 N.W.2d 926, 928 (citations and internal quotations omitted).

[¶ 8.] In Hansen an inmate mailed his notice of appeal to the Minnehaha County Clerk of Court’s Office. The notice did not include the filing fee or an application for waiver of the fee. Hansen, 1999 SD 135, ¶ 2, 601 N.W.2d at 618. The clerk refused to file the appeal and returned the notice to an attorney who was on contract to assist inmates. Id. at ¶ 3. An amended appeal was presented to the clerk along with an application for waiver of the fee; however, it was presented outside the thirty-day appeal deadline. Id. We held that under SDCL 1-26-31 an appeal is “not perfected unless and until the filing fee or appropriate waiver is deposited with the clerk of the circuit court.” Id. at ¶ 8.

[¶ 9.] In Hansen, obviously, the inmate did not maintain an account with the clerk of courts. Consequently, he was required to deposit the “filing fee or appropriate waiver” along with his notice of appeal. Hansen, 1999 SD 135, ¶ 8, 601 N.W.2d at 619. This case is distinguishable. It is common practice for law firms to maintain an account with the clerk and charge fees to that account. A charge to a firm’s account at the time of filing is equivalent to depositing a fee. We decline to interpret Hansen as requiring attorneys to draw and deposit a check each time an appeal is filed. Thus, the filing of the notice of appeal on August 4, 1999, along with the charge to the account perfected the taxpayers’ appeal within the thirty-day deadline.

2. Services Subject to Use Tax

[¶ 10.] Our standard of review in an administrative appeal is governed by SDCL 1-26-36. We give deference to the agency on factual matters, applying the clearly erroneous standard of review. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citations omitted). When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo unhampered by the clearly erroneous rule. Kurtz v. SCI, 1998 SD 37, ¶ 10, 576 N.W.2d 878, 882. But see SDCL 15-6-52(a) (as amended effective July 1, 2000). “Whether a statute imposes a tax under a given factual situation is a question of law and thus no deference is given to any conclusion reached by [the] Department [of Revenue] or the circuit court.” Dep’t. of Revenue v. Sanborn Tel. Co-op., 455 N.W.2d 223, 225 (S.D.1990) (citing Mid-continent Broadcasting Co. v. Dept. of Revenue, 424 N.W.2d 153, 154 (S.D.1988)) (bracketed text in original). Statutes allowing tax exemptions are exactingly and narrowly construed in favor of the taxing entity. Matter of State & City Sales Tax Liability of Quality Service Railcar Repair Corp., 437 N.W.2d 209, 211 (S.D.1989).

[¶ 11.] The Department identifies two separate transactions between the distributors and the taxpayers: one providing for the assignment of production specialists for a fee, a taxable service under SDCL 10-45-4, and another involving the sale of tax exempt agronomy products for resale. The taxpayers dispute this interpretation, insisting that the service is an “inextricable part” of the sale of exempt agronomy products. See SDCL 10-45-4.1. The Department seeks to impose a use tax on the service as authorized by SDCL 10-46-2.1. It argues that since the distributors did not collect sales tax when providing the taxpayers with production specialist services, such services are subject to use tax. See generally Sanborn, 455 N.W.2d at 225.

[¶ 12.] A sales tax is imposed “upon the gross receipts of any person from the engaging or continuing in the practice of any business in which a service is rendered.” SDCL 10-45^4. Services are defined in SDCL 10 — 45-4.1 and are presumed taxable unless specifically exempted. Id.

“Service” means all activities engaged in for other persons for a fee, retainer, commission, or other monetary charge, which activities involve predominantly the performance of a service as distinguished from selling property. In determining what is a service, the intended use, principle objective or ultimate objective of the, contracting parties shall not be controlling. For purposes of this chapter services rendered by an employee for his employer are not taxable.

SDCL 10-45-4.1. As required by this statute, we use the predominant activity test in deciding if services were subject to sales tax. See Nash Finch Co. v. South Dakota Dept. of Revenue, 312 N.W.2d 470, 472 (S.D.1981). Accord EG & G, Inc. v. Director of Revenue, 94 N.M. 143, 607 P.2d 1161, 1164 (N.M.App.1979) (“predominant ingredient” test). We have also emphasized that “determinations of taxability should focus on the transaction.” Sioux Falls Newspapers, Inc. v. Secretary of Revenue, 423 N.W.2d 806, 809 (S.D.1988). Here, the dispositive transaction occurred with the distributors and the taxpayers, not with the ultimate sale of agronomy products or in providing production specialist services to farmers and ranchers.

[¶ 13.] From our review of the record, the distributors and the taxpayers were engaged in two distinct transactions. The taxpayers signed a “crop production specialist program agreement” to participate in the program. In this contract, the distributors agreed to “recruit, hire, and train each CPS.” In ton, the taxpayers agreed to reimburse the distributors for one hundred percent of the specialists’ salaries and expenses. A representative of the distributors testified that the reason for such an arrangement was that local cooperatives “couldn’t attract the kind of personnel [needed] to compete in the marketplace.” Furthermore, he conceded that the program was very similar to that of an employment agency. These activities may increase product sales, but they are sufficiently distinct from the sale of agronomy products to be classified as a separate service.

[¶ 14.] The taxpayers contend that because the cost of the production specialist program is recovered through their profit margin that it constitutes only one transaction. Yet, countless business expenses may be recovered through a retailer’s profit margin, some wholly unrelated to the sale of tangible personal property. We conclude that the production specialist program involves “predominantly the performance of a service as distinguished from selling property.” See SDCL 10-45-4.1. Consequently, use tax may be properly imposed on the payments for those services under SDCL 10-46-2.1.

3. Rejection of Hearing Examiner’s Findings

[¶ 15.] The circuit court found that the Secretary of Revenue failed to give specific reasons for rejecting the hearing examiner’s findings of fact and conclusions of law. Moreover, the court found that the Secretary’s decision was devoid of any clearly erroneous analysis, indicating that the Secretary failed to give deference to the hearing examiner’s credibility determinations. In light of our standard of review, the court’s decision that the Secretary acted arbitrarily is of no consequence. In an administrative appeal, we review the Department’s decision the same as the circuit court, unaided by any presumption that the court was correct. Kurtz, 1998 SD 37, ¶ 10, 576 N.W.2d at 882 (citing Zoss v. United Bldg. Centers, Inc., 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843).

[¶ 16.] Certainly, SDCL 1-26D-8 requires the Department to give written reasons for rejecting a decision; the purpose of such a requirement is to ensure meaningful appellate review. See In the Matter of SDDS, Inc., 472 N.W.2d 502, 512 (S.D.1991). The Secretary’s two sentence rejection of the hearing examiner’s findings was indeed without elaboration. Read together with his findings of fact and conclusions of law, however, meaningful appellate review is possible. Additionally, the absence of a “clearly erroneous analysis” can be explained by the nature of the question involved. The imposition of a tax under a given factual situation is a question of law. Sanborn Tel. Co-op., 455 N.W.2d at 225.

[¶ 17.] Reversed.

[¶ 18.] MILLER, Chief Justice, and SABERS, Justice, concur.

[¶ 19.] AMUNDSON, and GILBERTSON, Justices, dissent.

GILBERTSON, Justice

(dissenting).

[¶ 20.] The services provided by the production specialists are predominantly concerned with promoting the sale of agronomy products. SDCL 10-45-4.1. As such, those services are exempt from use tax under SDCL 10-45-4. Therefore, I respectfully dissent from the court’s conclusion to the contrary on Issue 2.

[¶ 21.] SDCL 10-45-4 provides:

There is hereby imposed a tax at the same rate as that imposed upon sales of tangible personal property in this state upon the gross receipts of any person from the engaging or continuing in the practice of any business in which a service is rendered. Any service as defined by § 10-45-4.1 shall be taxable, unless the service is specifically exempt from the provisions of this chapter.

The term “service” is defined as “all activities engaged in for other persons for a fee, retainer, commission, or other monetary charge, which activities involve predominantly the performance of a service as distinguished from selling property.” SDCL 10-45^1.1 (emphasis added). Pursuant to these two statutes, any activity that “predominantly involve[s] the sale of tangible personal property rather than the performance of a service” is not subject to use tax. Nash Finch Co. v. Dep’t of Revenue, 312 N.W.2d 470, 472 (S.D.1981). In addition, when determining taxability we must examine the transaction as a whole. Sioux Falls Newspapers, Inc. v. Secretary of Revenue, 423 N.W.2d 806, 809 (S.D. 1988).

[¶ 22.] As noted by the court’s opinion, when “determining what is a service, the intended use, principal objective or ultimate objective of the contracting parties shall not be controlling.” SDCL 10-45-4.1. However, this statute clearly does not require us to ignore the primary objective of the parties. While not dispositive, the primary objective of the parties is certainly relevant to the determination of the predominant activity in any particular situation. If the legislature truly wished to completely preclude us from considering the primary objective of the parties, it could quite simply have so stated. See Matter of Loomis, 1998 SD 113, ¶ 11, 587 N.W.2d 427, 429.

[¶ 23.] As the Department concedes in its brief, a “production specialist is a highly educated salesperson of agronomy products who, as part of a sales pitch, offers advice to the farmer or rancher.” In addition, the Department’s auditors acknowledged that any services provided aré “directly related to the sale of a product.” Despite these admissions, the court concludes this transaction was predominantly a service by focusing on the advice offered, rather than the sale of agronomy products.

[¶ 24.] I submit the production specialists’ activities predominantly involve the sale of agronomy products. SDCL 10-45-4.1. Production specialists spend approximately 80% of their time contacting farmers, developing rapport, and attempting to sell agronomy products. They conduct soil tests, determine fertility and historical production rates, and recommend products suited for the farmer’s particular needs. A crop management program is established, allowing the farmer to analyze the income and expenses generated for each individual field or crop. To establish these programs, production specialists analyze crop scouting reports, soil maps, and prior crop and chemical usage. Additionally, farmers place orders for the vendor’s product directly with the production specialists. These activities are provided to convince farmers that the products are needed and the costs are justified. Much like the free delivery of purchases to the farmers, they are also provided, free of charge, with one goal in mind: sell agronomy products.

[¶ 25.] In addition to the groundwork done in the field, there is further evidence the work of production specialists predominantly involve the sale of agronomy products. They only recommend their employer’s products to farmers. Much like a Gateway representative will not recommend a Dell computer, a production specialist employed by Cenex/Land O’Lakes will not recommend that a farmer purchase an herbicide sold by a competitor. Since the taxpayers receive no direct payment from farmers for the advice and consultation provided by the production specialists, the only benefits they receive are increased sales of agronomy products. If sufficient sales wex-e not generated to offset the cost of the production specialists, the program would quickly be discontinued. In addition, the existence and availability of production specialists is a major reason the taxpayers do business with the vendors. Finally, farmers receive advice only in conjunction with the sale of agronomy products.

[¶ 26.] The activities of the production specialists in this instance predominantly involve the sale of agronomy products. Indeed, it is no diffei'ent than the technique used by any successful salesperson. One must convince a potential buyer first that the product is needed, and second that it is justified. To separate these two steps from the actual magical moment of sale ignores our mandate in Sioux Falls Newspapers to examine the entire transaction when determining taxability. 423 N.W.2d at 809. This separation also ignores the groundwork that must be laid before a sale will be consummated. The activities of the production specialists “predominantly involve the sale of [agronomy products] rather than the performance of a service.” Nash Finch, 312 N.W.2d at 472. Therefore, the expense incurred related to those specialists should be exempt from use tax under SDCL 10-45-4.

[1Í 27.] AMUNDSON, Justice, joins this dissent.

      . This particular language is excerpted from the Cenex/Land O’Lakes Crop Production Specialist Agreement. The taxpayers offered testimony that the Harvest States and Cenex production specialist programs were “carbon copies” of one another.

      . Other tax liability revealed in the audit was not contested.

      . For reasons unclear in the record, the hearing examiner had the matter under advisement for sixteen months before issuing a decision.

      . SDCL 10-45-4 provides:
      There is hereby imposed a tax at the same rate as that imposed upon sales of tangible personal property in this state upon the gross receipts of any person from the engaging or continuing in the practice of any business in which a service is rendered. Any service as defined by § 10-45-4.1 shall be taxable, unless the service is specifically exempt from the provisions of this chapter.

      . The Department also argues in its brief that this activity is specifically taxable under SDCL 10-45-5.2. This section enumerates certain services described in the Standard Industrial Classification Manual as specifically taxable. The Department claims that these production specialist services are “help supply services” in Major Group 73. We will not address the applicability of this section because it was never argued before the administrative agency. We refrain from addressing matters brought for the first time on appeal. Grand State Property, Inc. v. Woods, Fuller, Shultz, & Smith, 1996 SD 139, ¶ 19, 556 N.W.2d 84, 88 (citations omitted). Likewise, the Department failed to propose a specific finding to the circuit court that the production specialist position was taxable under SDCL 10-45-5.2. The burden was on the Department to demand a ruling on this issue. Jameson v. Jameson, 1999 SD 129, ¶ 25, 600 N.W.2d 577, 583 (citations omitted).

      . The operative language of the “Crop Production Specialist Program Agreement" states that the specialist will “provide services.” The governing statute, SDCL 10-45-4.1, provides: “In determining what is a service, the intended use, principal objective or ultimate objective of the contracting parties shall not be controlling.” Assuredly, the ultimate purpose of the crop production specialist program is to maximize sales of agronomy products. But that can be said of almost every service provided to a business: maximize sales. That is apparently why the Legislature directed that the "ultimate objective of the contracting parlies is not controlling."


author: SRSTKA, Circuit Judge. AMUNDSON, Justice

text:
    2001 SD 57
    In the Matter of the ESTATE OF John B. CATRON.
    Nos. 21310, 21376.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 29, 2000.
    Decided May 9, 2001.

      Thomas W. Stanton and Michael V. Wheeler of Demersseman, Jensen, Rapid City, SD, attorneys for appellant.
    Haven L. Stuck and Craig A. Pfeifle of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, attorneys for appellees.
   SRSTKA, Circuit Judge.

[¶ 1.] The children and grandchildren (collectively, Family) of John Catron appeal from a circuit court order approving his widow’s claim against his estate and awarding fees to the estate’s attorneys and to the personal representative. We affirm.

FACTS AND PROCEDURE

[¶ 2.] John, a Harding County rancher, died June 6, 1998, at the age of 84. His survivors included his second wife, Carol; two children; and grandchildren from a third child who predeceased him. His first wife, Esther, died in 1995. John and Esther were married at the time of her death.

[¶ 3.] Although John was married to Esther, he began an intimate relationship with Carol in 1982, shortly after they met. Two years later, John and Carol began living together and eventually married on August 8, 1997. From the beginning of this relationship, John’s family members were concerned about how his relationship with Carol would affect the family’s ranching operations and the disposition of his assets.

[¶ 4.] The Catron family had ranched in Harding County for many years. To settle family concerns, John and the Ca-tron family, including his wife Esther, executed a Catron Family Agreement in April 1988. By this document, John agreed to continue his present estate plan and not revoke his 1982 will, and to transfer ranch property only to members of the Catron family.

[¶ 5.] The dispute underlying this appeal arises from a claim Carol submitted against John’s estate to redeem property located in Black Hawk, South Dakota. Carol purchased this property in 1973 through a loan secured by a mortgage on the property. In 1984, John paid the balance of this loan; however, the property remained solely in Carol's name.

[¶ 6.] In 1997, eight months before his death, John borrowed $51,000 from First Finance of Rapid City, executing a promissory note secured by a mortgage on the Black Hawk property. Both John and Carol executed the mortgage. Since the couple did not reside on this property, John and Carol allowed Carol’s daughter, Cheryl, and her boyfriend, Gary, to live there. This arrangement was conditioned on Cheryl and Gary’s paying the mortgage payments in lieu of rent; however, they made only one payment and the note went into default. First Finance commenced to foreclose against the property on May 28, 1998; nine days later, John died. First Finance obtained a judgment of foreclosure to satisfy a total debt of $60,642.31. The property was sold at a sheriffs sale on March 23,1999.

[¶ 7.] After John’s death, a will dated August 15, 1995 was found. In this will, drafted after Esther’s death, John left all Ms property to a revocable trust. According to the terms of the will, in the event that the trust failed, John devised and bequeathed all of his property to Carol. The trust failed and Carol was sole beneficiary of John’s property under the will. This will was admitted to probate and a personal representative was appointed. On August 13, 1998, a notice to creditors was first published. Family contested the will as a violation of the 1988 Catron Family Agreement.

[¶ 8.] On May 24, 1999, two months after the sheriffs sale of the Black Hawk property, Carol filed a claim against the estate for $62,504.81 to redeem her property from the foreclosure sale. The personal representative petitioned the court to allow Carol’s claim. In April 1999, the parties settled the will contest with Carol receiving 40% of the net estate and Family receiving 60%. Reserved from this settlement, however, was the issue of Carol’s claim for payment of funds to redeem the Black Hawk property. Family contended that Carol’s claim against the estate was untimely and that it should have been exempted from the settlement as the note had merged into the judgment.

[¶ 9.] Family also disputed the amount of the estate’s attorneys’ fees and the personal representative’s fees, claiming they were exorbitant and derived mainly from Carol’s pursuing her own interests that did not benefit the estate. Further, Family claimed that neither the attorneys nor the personal representative filed a timely inheritance tax report.

[¶ 10.] After several hearings, the circuit court approved Carol’s claim against the estate and awarded fees to the attorneys for the estate and to the personal representative in the amounts requested. Family appeals, raising three issues that we have consolidated into two:

Whether the circuit court erred in approving Carol’s claim.
Whether the circuit court erred in awarding attorneys’ fees and the personal representative’s fees.

STANDARD OF REVIEW

[¶ 11.] All evidence in this case was received through documentary evidence and deposition testimony. SDCL 15-6-52(a), recently amended, provides that “[findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous!.]” Under this standard, “[c]lear error exists only when, upon a review of all the evidence in the record, we are left with a definite and firm conviction a mistake has been made.” Even v. City of Parker, 1999 SD 72, ¶ 9, 597 N.W.2d 670, 674. We review the award of fees under an abuse of discretion standard of review. In re Estate of Klauzer, 2000 SD 7, ¶ 26, 604 N.W.2d 474, 480.

ANALYSIS

ISSUE ONE

[¶ 12.] Whether the circuit court erred in approving Carol’s claim.

[¶ 13.] The circuit court concluded that, under SDCL 29A-3-804(b), First Finance was not required to file a proof of claim because it had commenced its foreclosure action prior to John’s death. This statute provides, in pertinent part, that “[n]o presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of death in any court.” The court further concluded that Carol succeeded to the rights of First Finance by satisfying John’s debt out of her solely-owned property; and that she had a valid claim against the estate in the amount necessary to redeem this property.

[¶ 14.] Family claims the circuit court erred in approving Carol’s claim because the foreclosure action extinguished the debt under SDCL 21-47-17. This statute provides in pertinent part that “foreclosure by action of a mortgage upon real estate operates as a complete extinguishment, satisfaction and payment of the debt secured by the mortgage.” Perpetual Nat’l Life Ins. Co. v. Brown, 85 S.D. 330, 182 N.W.2d 216, 218 (1970). First Finance purchased the mortgaged property at the March 23, 1999 sheriffs sale, pursuant to SDCL 21-47-15. Family concludes that after this sale, tfie promissory note and debt were no longer in existence. In particular, Family claims that Carol did not submit her claim against the estate until after the mortgage had been foreclosed, the property sold, and the debt extinguished. Hence, under Family’s argument, Carol had nothing on which to base her claim.

[¶ 15.] Family also claims Carol received benefits from the loan, thus, she is not entitled to the benefits and protections of suretyship accorded by SDCL 56-2-1 and other suretyship statutes. Family contends that State of Wisconsin Investment Bd. v. Hurst, 410 N.W.2d 560 (S.D.1987) is controlling. In Hurst, we stated:

[O]ne who receives and retains the consideration or benefit of a contract cannot occupy the position of surety. Hence, a person who makes a contract for the purpose of securing to himself a benefit rather than for securing to another a benefit, may be classified as a principal.

Id. at 563 (internal citation omitted). Family reasons, under Hurst, that no surety relationship existed because Carol obtained personal benefits in executing the mortgage on the Black Hawk property. Specifically, Family alleges that Carol used a significant portion of the loan for personal expenditures.

[¶ 16.] Finally, Family argues Carol’s claim is time-barred under SDCL 29A-3-801(a). This statute provides:

A personal representative upon appointment may publish a notice to creditors once a week for three successive weeks in a legal newspaper in the county in which the proceeding is pending giving the personal representative’s name and address and notifying creditors of the decedent to present their claims within four months after the date of the first publication of the notice or the claim may be barred.

[¶ 17.] Estate contends Carol had a timely and valid claim against the estate because John’s debts passed to the estate pursuant to SDCL 29A-3-807 and 29A-3-808. First Finance’s claim was pending at the time of John’s death. Estate claims it was faced with the situation in which the debt evidenced by John’s note passed to the estate, yet a lawsuit was pending to foreclose on the property that was pledged by Carol, not a signatory to the note. Estate maintains that its duty to pay the note was not relinquished by the foreclosure action.

[¶ 18.] The question of when a claim could be presented by Carol only occurred during the pendency of the foreclosure action, and it naturally follows that the timetable of the foreclosure action would determine when the claim, Carol’s right to redeem, would occur. Since the foreclosure action was pending at John’s death, the publication deadlines pursuant to SDCL 29A-3-801(a) do not apply. Estate concludes that the payment of John’s debt by Carol through the foreclosure and sale of her property obligates it for John’s debt; and accordingly, Carol may recover from the estate the amount necessary to redeem her property.

[¶ 19.] Estate relies on Ogan v. Ogan, 122 Ohio App.3d 580, 702 N.E.2d 472 (OhioCtApp. 1997) to support its argument that Carol is entitled to recover the sum necessary to redeem the Black Hawk property. In Ogan, a couple married in 1991. Shortly after the marriage, husband and wife entered into a transaction where husband signed a note with a bank. Husband and wife executed a mortgage securing the note with a specific piece of property. Two days after the bank transaction, husband conveyed his interest in the property to himself and his wife “for their joint lives, remainder to the survivor of them.” Id. at 473. After her husband died, wife continued to pay on the note for some time. Later, she sold the property and paid off the note. Presenting a claim to her husband’s estate, wife claimed she was entitled to reimbursement since she had paid off the note. The estate rejected her claim. Addressing the same issue pending in the appeal before this Court, the Ohio court stated:

Decedent had an obligation to pay the bank the amount owed on the note. Upon decedent’s death, appellant, as executor of the estate, accepted the duty to pay decedent’s debts. [Wife’s] payment of the debt owed on the note relieved the bank of its claim against the estate. However, by paying the debt, [wife] took the place of the bank and became a creditor against the estate. [Wife], as a creditor against the estate, had the legal right to present a claim against the estate.

Id. at 475 (internal citations omitted).

[¶ 20.] The Ohio court affirmed the wife’s right to reimbursement. We find the reasoning of the Ohio court persuasive and dispositive on this issue, and thus, we do not reach the suretyship issue raised by Family. Accordingly, we hold that the circuit court did not err in concluding that Carol has a valid claim against John’s estate.

[¶ 21.] Carol’s claim arose out of a suit that was pending at the time of John’s death, the exact situation contemplated by SDCL 29A-3-804(b). Carol stepped into the shoes of First Finance when it initiated a foreclosure action against the Black Hawk property. The debt was not extinguished by foreclosure. It became a debt of the estate to Carol, as opposed to a debt of the estate to First Finance, an action pending at the time of John’s death. As to Family’s claim that the foreclosure extinguished Carol’s claim, redemption eliminates the effect of a foreclosure sale and restores the property to the owner. See Donovan v. Farmers Home Admin., 19 F.3d 1267 (8thCir.1994). We affirm the circuit court on this issue.

ISSUE TWO

[¶ 22.] Whether the trial court erred in awarding attorneys’ fees and the personal representative’s fees.

[¶ 23.] The court approved $39,466.13 in attorneys’ fees and $5,325 in personal representative fees. Family made a general objection that the bills were exorbitant. Subsequently, the attorneys filed an itemized statement with the court. The court reviewed and approved the fees for both the attorneys and the personal representative. Family claims the circuit court erred in awarding these fees. As the party challenging the reasonableness of fees, Family bears the burden to show excessive compensation. In re Estate of Wagner, 253 Neb. 498, 571 N.W.2d 76, 78 (1987).

[¶ 24.] Family made general, rather than specific, objections to the award. Absent specific objections, this Court examines the award to determine “whether the fee is ‘so exorbitant and wholly is disproportionate to the services performed as to shock the conscience.’ ” In re Disc. of Dorothy, 2000 SD 23, ¶23, 605 N.W.2d 493, 500 (citations omitted). The circuit court stated its rationale in awarding the requested amount in fees:

The Court finds that these attorney’s fees are indeed reasonable. That the firm of Lynn, Jackson represented the personal representative who was forced to defend the petition for allowance of the claim and the opposition launched against that petition for allowance of the claim of Carol Catron and that was costly. Attorney fees were at [$]22,000 in August. Now, they’re at [$]39,000.... There has been a significant amount of litigation generated since August.

Moreover, the circuit court did not adopt Family’s argument that estate’s attorneys were representing Carol, rather than the personal representative. We find no abuse of discretion in this fee award.

[¶ 25.] We affirm.

[¶ 26.] MILLER, Chief Justice, and SABERS, Justice, and STEELE, Circuit Judge, concur.

[¶ 27.] AMUNDSON, Justice, concurs in part and dissents in part.

[¶ 28.] SRSTKA, Circuit Judge, for KONENKAMP, Justice, disqualified.

[¶ 29.] STEELE, Circuit Judge, for GILBERTSON, Justice, disqualified.

AMUNDSON, Justice

(concurring in part and dissenting in part).

ISSUE TWO

[¶ 30.] One of our basic tenets regarding attorneys’ fees is that they are not to be awarded to an adverse party absent statutory authority. Kanaly v. State, 401 N.W.2d 551 (S.D.1987); see also Estate of Weickum, 317 N.W.2d 142 (S.D.1982); Boland v. City of Rapid City, 315 N.W.2d 496 (S.D.1982). Carol erroneously relies upon SDCL 29A-3-719 and 720 as such authority. We have stated on numerous occasions, however, that before attorneys’ fees will be paid from the estate pursuant to such authority, the estate must somehow benefit from the work of the attorney submitting the bill. Guardianship of Larson, 1998 SD 51, ¶ 32, 579 N.W.2d 24, 29; Estate of Lingscheit, 387 N.W.2d 738, 741 (S.D.1986); Engebretson v. Graff, 69 S.D. 549, 12 N.W.2d 761, 763 (1944).

[¶ 31.] As her claim for redemption was brought to recover proceeds from the estate for her personal benefit, SDCL 29A-3-719 and 720 do not allow for attorneys’ fees in this instance. Carol argues that she was attempting to protect the “intent of the testator” as her grounds for maintaining this action as benefiting the estate. Her argument is without merit as the estate contest involving the heirs had already been settled prior to this redemption claim. As this Court stated in Estate of O’Keefe, 1998 SD 92, ¶ 20, 583 N.W.2d 138, 142, “Woelz has not shown how the current action to prohibit Langes from sharing in the punitive damage award benefits the Estate.” The same applies to Carol in this case as she has failed to show a benefit to the estate by her personal gain through the redemption claim. Carol agreed in the settlement of the contest to a certain percentage of the estate and under the redemption claim she wants more. By allowing her to recover attorneys’ fees on the redemption claim, this Court, in essence, is allowing Carol a windfall. We need not address whether the fees were excessive, as the fees incurred in the redemption claim should not have been awarded in the first place. Therefore, I would remand to the trial court to delete the attorneys’ fees attributable to the redemption claim.

      . The couple lived together from 1984 to 1998 with the exception of a brief separation in 1992.

      . John had previously executed a will and revocable trust on May 13, 1982, naming members of the Catron family as his devisees.

      . SDCL 21-47-15 provides: " 'In any foreclosure of a mortgage upon real estate by action, the holder of the mortgage may purchase the mortgaged premises, or any part thereof, at such foreclosure sale, if the holder bids fairly and in good faith, and bids the fair and reasonable value thereof!.]' "

      . Family argues that Carol used the proceeds from the loan to retire a judgment entered against her in the amount of $7200, to extinguish a county lien against the Black Hawk property, to pay off several credit cards, and to buy new furniture.


author: LARSON, Justice.

text:
    In the Matter of the Application of Michael HANUS to take the Iowa Bar Examination, Michael Hanus, Applicant.
    No. 01-0002.
    Supreme Court of Iowa.
    April 25, 2001.
    Rehearing Denied June 4, 2001.
    Michael Hanus, Fremont, Nebraska, pro se.
    Pamela Griebel and Cristina Kuhn, Assistant Attorneys General, for Iowa Board of Law Examiners.
   LARSON, Justice.

Our board of law examiners, appointed pursuant to Iowa Code section 602.10103 (1993), is charged with regulation of the admission to the Iowa bar. As a part of that process, the board investigates the character and fitness of bar applicants. Ct. R. 108(a). In this case, the board found the applicant, Michael Hanus, had failed to carry his burden of showing he has the requisite character and fitness to be permitted to take the bar examination, and he filed this appeal. We affirm.

I. The Legal Principles.

Under Court Rule 100(b),

[t]he authority to pass on the sufficiency of applications for permission to take the bar examination is vested in the Iowa board of law examiners, subject, however, to review by the Iowa supreme court.

Under rule 108(a),

[t]he Iowa board of law examiners shall make an investigation of the moral character and fitness of any applicant and may procure the services of any bar association, agency, organization, or individual qualified to make a moral character or fitness report.

The burden to demonstrate the requisite character and fitness is on the applicant, under Court Rule 104:

The board of law examiners and the clerk of this court shall prepare such forms as may be necessary for application for examination. The application shall require the applicant to demonstrate the applicant is a person of honesty, integrity and trustworthiness, and one who appreciates and will adhere to the code of professional responsibility as adopted by the supreme court, together with such other information as the board and clerk determine necessary and proper.

We said in In re Peterson, 439 N.W.2d 165, 166 (Iowa 1989), that the standard of proof is a “convincing preponderance of the evidence” (emphasis added), although Court Rule 104 does not provide for a convincing-preponderance standard. Moreover, the case we cited in Peterson for the proposition that a convincing preponderance was required, Committee on Professional Ethics & Conduct v. Kras-chel, 260 Iowa 187, 148 N.W.2d 621, 627 (1967), was an attorney disciplinary case in which the committee had the burden of proof by a convincing preponderance of the evidence; it was not an appeal from a law examiners’ order. Nevertheless, the standard of proof to be applied in this case is not significant because, whether it is a convincing preponderance or a mere preponderance of the evidence, Hanus has failed to carry his burden of establishing the requisite character under Court Rule 104.

Court Rule 110 establishes the procedure for challenging a ruling of the board:

When the board of law examiners determines that any person who registers or makes application should not be permitted to take a bar examination, or that an applicant who has passed a bar examination should not be recommended for admission to practice law in Iowa, the board shall notify the applicant in writing of its determination.

Ct. R. 110(c).

If an applicant requests a hearing,

the chairperson of the board shall appoint a lawyer-member of the board to act as hearing officer. The hearing officer shall promptly set a hearing, and the clerk of the supreme court shall notify the applicant by mail at least ten days before the hearing date of the time and place of hearing.

Ct. R. 110(c)(4).

Under rule 110(c)(8), the board’s hearing officer is to provide the board with a hearing transcript and a summary of the evidence without fact-findings or legal conclusions. The board is then to make its final determination, and the supreme court clerk is to notify the applicant of the board’s decision.

II. Prior Proceedings.

In this case, the board appointed a hearing officer (a lawyer member of the board). The hearing officer made his report, and the board unanimously voted to deny Ha-nus’s application. We are now at the stage where this court must make the final decision.

III. The Evidence.

We review the record de novo. Peterson, 439 N.W.2d at 166.

As we noted in an attorney disciplinary case,

[fundamental honesty is the baseline and mandatory requirement to serve in the legal profession. The whole structure of ethical standards is derived from the paramount need for lawyers to be trustworthy. The court system and the public we serve are damaged when our officers play fast and loose with the truth. The damage occurs without regard to whether misleading conduct is motivated by the client’s interest' or the lawyer’s own.

Comm, on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990). The board contends the evidence adduced at the hearing falls short of establishing the applicant “is a person of honesty, integrity, and trustworthiness” as required by rule 104, and we agree.

An applicant has no natural or constitutional right to practice law in this state; it is in the nature of a privilege or franchise. Peterson, 439 N.W.2d at 166. On the other hand, we cannot exclude an applicant for reasons that contravene constitutional due process or equal protection. Id. We believe the consideration accorded to this applicant comports with all applicable constitutional requirements, and the board’s order denying his application is well supported by the record.

The applicant graduated from Creighton University Law School and applied, unsuccessfully, for permission to take the bar examination in Nebraska. He then applied to take the Iowa examination, but his efforts in Iowa have been rebuffed at all levels. His problems in both states result from his failure to establish he is a person of honesty, integrity, and trustworthiness, as required by the bar rules of Nebraska and Iowa.

The applicant’s problems have been generated to a large extent by two brushes with the law in Nebraska. One was a shoplifting arrest and the other an arrest for failing to display proper license plates. On November 9, 1987, Hanus was arrested for shoplifting a $3.99 socket wrench at a Sears store in Omaha. He pled “no contest” to the charge, although he now contends he was innocent. Hanus sued Sears for false arrest and negligence in failing to train or adequately supervise its personnel. He also sued them for conspiracy to batter and slander. Hanus’s wife, who is the subject of a separate case involving her application to take the bar examination, alleged claims against Sears and its employees for loss of consortium and intentional and negligent infliction of emotional distress.

The lawsuits failed, and the Nebraska Court of Appeals affirmed. The court of appeals characterized the case as involving a “massive” record, eighteen volumes of 250 to 300 pages each, and a transcript of pleadings exceeding 430 pages. The court found the suit was meritless. It further found that an attempt by the applicant and his wife to recuse the trial judge was spurious, and their charges against the judge were unfounded. The court found that Hanus’s accusations against Sears’ attorney were unsubstantiated and found there was “no believable evidence in the record” to support Hanus’s charges of misconduct against the lawyer. The litigation generated by the shoplifting incident spanned almost eight years.

The lawyer for Sears, Robert Peterson, testified that in the Sears litigation he had viewed a videotape of Hanus stealing the socket set, being escorted to the Sears security office, and bolting from the office with a security officer in pursuit. He expressed the opinion that the applicant’s integrity is insufficient to warrant his admission to practice law. He claimed Ha-nus made misrepresentations in motions, that he backdated a motion for summary judgment, and that he failed to comply with court orders resulting in sanctions and dismissal. Hanus contends that, because he obtained a pardon from the may- or of Omaha, the facts surrounding his arrest and subsequent vexatious litigation should not be admitted in the Iowa proceedings, but we disagree.

Hanus was arrested for another offense again giving rise to protracted and vexatious litigation. He was stopped on February 20, 1993, for not having proper license plates. He demanded a jury -trial, and the jury found him guilty. He filed a motion for new trial, which was denied, and he then appealed the conviction. After the appeal was exhausted and the conviction was affirmed, he failed to pay the fine. An arrest warrant was issued for him after he failed to appear for a court heai'ing. He then filed a petition for writ of habeas corpus in another county, which was denied, and he appealed that decision as well. He filed a habeas corpus petition in the United States district court, which was dismissed. The litigation spawned by the traffic citation lasted over six years.

A deputy in the county attorney’s office who prosecuted the license plate charge testified about the prosecution and subsequent events. He testified that, based on his contact with the applicant during the course of the litigation, he came to know him well enough to give the opinion that the applicant should not be allowed to practice law. The county attorney involved in the license-plate prosecution testified that Hanus “is not truthful in his pleadings, ... is willing to allege things that simply did not happen, did not occur, and are not truthful,” and that the applicant “is not fit to practice law.”

Daniel Beckwith, a Nebraska district court judge, testified that Hanus had attempted to make improper contact with jurors after the trial on the license charge. He testified Hanus has “no real respect for the judicial process.” He testified that, although he had written a letter of recommendation for Hanus to be admitted to law school in 1992, he has changed his opinion about him and regrets writing that letter. He stated he would not write a letter for Hanus in support of an application to the Nebraska bar and that “[ejvents have made it clear to me that Michael Hanus has substantive lack of respect for the law and the judiciary....” He stated that Hanus would not be an asset to the legal community and that “I don’t believe that he is representative of the type of lawyer that I want to have practicing before me.”

Hanus was denied permission to take the bar examination in Nebraska in July 1998, based on the Nebraska State Bar Commission’s conclusion that Hanus lacks “the necessary character and fitness for admission.” The commission stated, in addressing their order to Hanus:

The Commission also finds that you lacked candor in the admissions process. In your application, you did not provide complete information or pertinent copies of court proceedings and decisions in various cases or appeals in which you were a party. Much of this various litigation material had to be independently obtained by the Commission in order to be reviewed and properly evaluate your application. In addition, the Commission finds that you lacked candor with respect to your shoplifting arrest on November 9, 1987, and your conviction of that charge on January 4, 1988....
Further, it appears the Sears Roebuck case involved violations of court orders by you and that this case and other litigation in which you have been involved as the complaining party may have constituted abuses of legal process, including the filing of vexatious lawsuits.

Although Hanus contends this court should not consider the Nebraska proceedings as a part of the record in this case, we disagree. Our rules are quite broad; under Court Rule 108(a), our board of law examiners “may procure the services of any bar association, agency, organization, or individual qualified to make a moral character or fitness report.” We believe that the Nebraska State Bar Commission is an entity “qualified to make a moral character or fitness report” under this rule, and we give their assessment of the applicant considerable weight.

Based on the record in this case, we conclude that the applicant, Michael J. Ha-nus, has failed to establish the necessary honesty, integrity, and trustworthiness to be permitted to take the Iowa bar examination. We therefore affirm the order of the board of law examiners.

ORDER OF LAW EXAMINERS AFFIRMED.


author: SNELL, Justice.

text:
    STATE of Iowa, Appellee, v. Edward Jerome ANSPACH, Jr., Appellant.
    No. 00-0304.
    Supreme Court of Iowa.
    May 31, 2001.

      Thomas J. Clarke, Jr., of Isaacson & Clarke, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble and John Judish, Assistant County Attorneys, for appellee.
   SNELL, Justice.

This is a case about a defendant who did several foolish things. Whether his imprudent actions amount to child endangerment is the question before us today. Our determination necessarily turns on the interpretation of a statute as it applies to the actions of the defendant as well as the constitutional implications of the statute. See Iowa Code § 726.6(l)(a) (1999). Because we agree with the district court that the defendant’s actions constitute the crime of child endangerment, we affirm the district court’s decision.

I. Factual Background and Procedure

Edward Jerome Anspach, Jr. was stopped by police for speeding. He was traveling at a rate of fifty-three miles per hour in a thirty-five miles per hour zone. Police signaled by flashing lights for An-spach to stop. Police testimony indicated that rather than slow down and stop, An-spach actually sped up. Anspach then made two sharp turns onto a side street and then into an alley before finally coming to an abrupt stop. In his hastiness, Anspach left approximately thirty-foot skid marks on the road. When later asked by police why he did not immediately stop, Anspach told the officer he was losing his license in three days and did not want to get caught again. The weight of these facts indicate Anspach was trying to elude police.

Anspach was driving a truck containing several passengers. The open truck bed held two women, Ida and Carla Wallace. Police characterized the position of these women during the “chase” as one of “hanging on for dear life” “to keep from being thrown out.” Anspach was reportedly taking Ida and Carla on errands.

The truck cab contained four small children — one was lying on the floor and three were sitting or lying on the seat. The ages of the children were one, two, two, and three. The youngest lay on the floor of the truck on top of garbage and debris, the two-year-olds were fastened with the same belt, and the three-year-old was completely unrestrained. No child was protected by a car seat or properly secured by a seat belt. The officer speculated that the children must have been thrown about in the cab when the car skidded around the corner and went into a slide before coming to rest in the alley. Ida was the mother of two of the children. Caída was babysitting the other two children for a friend. None of the children had a relationship with Anspach.

Anspach was immediately cited for four counts of failing to use a child restraint system under Des Moines City Ordinance section 27-446 (now section 114-446), failure to yield to an emergency vehicle, failure to have insurance, and speeding. See Iowa Code § 321.446 (providing the State counterpart to the safety seat ordinance). Anspach was later charged with four counts of child endangerment under Iowa Code section 726.6(l)(a), (3), which are aggravated misdemeanors. These new charges carried the threat of incarceration. Neither Ida nor Carla were charged with any misconduct for their part in this situation.

Prior to trial, Anspach made a motion to dismiss the child endangerment charges against him based on several constitutional arguments. This motion was denied. An-spach then waived his right to a jury and the case went to bench trial. Anspach was convicted on all counts and sentenced to four indeterminate terms of two years to be served concurrently. The court then suspended his sentence and placed him on probation for a period of twenty-four months. Anspach appeals this conviction.

On appeal, he makes three arguments: (1) Iowa Code section 726.6(l)(a) is unconstitutionally vague by its undefined “substantial risk” requirement because it does not reasonably give fair warning to those who fall under it and enables arbitrary enforcement; (2) Evidence was insufficient to show that Anspach committed acts constituting a substantial risk to the children’s safety; and (3) Anspach was erroneously charged with child endangerment because he had no custody or control over the children.

II.Scope and Standard of Review

This case raises a constitutional vagueness issue for our review. See U.S. Const, amends. V, XIV; see also State v. Osmundson, 546 N.W.2d 907, 908-09 (Iowa 1996). We review constitutional claims de novo. State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997). As such, “we presume the statute is constitutional and ‘give it any reasonable construction necessary to uphold it.’ ” Id. (quoting State v. Hunter, 550 N.W.2d 460, 462 (Iowa 1996), overruled on other grounds by State v. Robinson, 618 N.W.2d 306 (Iowa 2000)). “This presumption places a heavy burden on one challenging the constitutionality of the statute.” Osmundson, 546 N.W.2d at 909. Accordingly, a contender must destroy any reasonable basis for the statute to secure a reversal. Wettach v. Iowa Bd. of Dental Exam’rs, 524 N.W.2d 168, 171 (Iowa 1994).

To the extent our review also requires us to interpret the meaning and scope of a particular statute, our review is for correction of errors at law. Iowa R.App. P. 4; State v. Orozco, 573 N.W.2d 22, 24 (Iowa 1997). “When reviewing such issues we are not bound by the trial court’s determinations of law.” State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997). Where the defendant also challenges the sufficiency of the evidence to support his conviction under the statute, “we review the evidence to determine whether a rational trier of fact could have found the defendant guilty of the offense charged” beyond a reasonable doubt. Id. Thus, our review of all the evidence in the record is made in a light most favorable to the State. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).

III. Preservation of Error

The State maintains that An-spach failed to preserve error on his claim that section 726.6(l)(a) cannot apply to him because of the custody and control requirement. Anspach alleges he was erroneously charged with child endangerment because he did not have custody or control over the children in this situation. This issue questions the meaning of the term control and suggests that Anspach’s circumstances were insufficient to show control. Anspach does not phrase his argument in terms of a constitutional void for vagueness challenge. Rather, he maintains that his conduct cannot be defined as control. We choose to interpret this issue as a sufficiency of the evidence challenge. When such a claim is made on appeal from a criminal bench trial, error preservation is no barrier. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997) (holding that “when a criminal case is tried to the court, a defendant may challenge the sufficiency of the evidence on appeal irrespective of whether a motion for judgment of acquittal was previously made”).

IV. Issues on Appeal

The child endangerment statute in question is provided below:

1. A person who is the parent, guardian, or person having custody or control over a child ... commits child endangerment when the person....
a. Knowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental or emotional health or safety.
3. A person who commits child endangerment not resulting in serious injury to a child or minor is guilty of an aggravated misdemeanor.

Iowa Code § 726.6(l)(a), (3).

A. The Constitutionality of Section 726.6(l)(a)

We will only address the issue of vagueness as it applies to Anspach’s circumstances. In this regard, a criminal statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). Thus, we will “consider whether [the defendant’s] conduct clearly falls within the proscription of the statute under any construction.” Hunter, 550 N.W.2d at 465 (citation omitted). Further, we recognize:

The degree of vagueness that the constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depend in part on the nature of the enactment. Thus, for example, a law interfering with the exercise of fundamental rights would be tested by a more stringent standard [than one that does not],

Jim O. Inc. v. City of Cedar Rapids, 587 N.W.2d 476, 478 (Iowa 1998) (citation omitted). The conduct at issue here is failing to abide by child restraint laws, exceeding the applicable speed limit, and attempting to evade police. Because Anspach has no legal right to engage in such conduct, no fundamental rights are implicated. As such, we will not employ the more stringent standard.

Anspach argues that the phrase “substantial risk” is vague because it is not capable of alerting the ordinary person to what type of conduct is implicated. Substantial risk is not defined in section 726.6. The phrase substantial risk, however, has been heavily defined in other contexts and enjoys a fairly ascertainable meaning. See State v. Carter, 602 N.W.2d 818, 821(Iowa 1999); State v. Anderson, 308 N.W.2d 42, 46-47 (Iowa 1981). Such analyses are helpful to our determination. For example,

The specificity required of a statute need not be apparent on its face. We may look to prior decisions, the dictionary and common usage.... The word “substantial” is defined in the dictionary and generally means real, important, not illusive. This is also the ordinary usage of the word. The statute sufficiently informs the jury of the general types of injuries that are required to find a pei*-son guilty of [the specific offense].
... We conclude that a substantial risk of death means more than just any risk of death but does not mean that death was likely. If there is a real hazard or danger of death, serious injury is established.

Anderson, 308 N.W.2d at 46-47 (citations omitted).

Section 726.6(l)(a) requires a showing of substantial risk to a child’s physical health or safety. It does not require proof that the conduct was negligent or reckless, although such actions may create a substantial risk. The above discussion also makes it unnecessary to prove that the physical risk to a child’s health or safety is likely. Rather a showing that the risk is real or articulable will suffice. See id. at 47.

Our search of the dictionary may further help define this phrase as it applies to the crime of child endangerment. “Substantial” is defined as: “Not imaginary; true; real.” American Heritage Dictionary 1213 (2d ed.1985). And “risk” is defined as: “The chance of injury, damage, or loss; danger or hazard.... ” Black’s Law Dictionary 1328 (7th ed.1999). Putting the case law and dictionary definitions together, the definition of “substantial risk” in the context of child endangerment is: The very real possibility of danger to a child’s physical health or safety.

Anspach argues that just about any type of conduct where children are concerned can fall within that definition. However, because this is an as-applied challenge, the question is limited to whether the statute is void as applied to Anspach’s actions. See Hunter, 550 N.W.2d at 465. “The fact the statute may be vague as applied to other factual scenarios is irrelevant to this analysis.” Id.

Anspach drove his car nearly twenty miles an hour over the legal limit. Then, he tried to outrun police in an irresponsible manner. He did this with the knowledge that he had four small children of tender age scattered about in the cab of his truck who could very easily have been killed or seriously harmed by an accident or an extended car chase. While any one of these facts on its own may not be enough to create a substantial risk, the totality of the conduct would alert the ordinary citizen that his actions were placing these children’s safety in articulable danger. Therefore, it is not unreasonable that Anspach’s actions fall within those prohibited by section 726.6. The language is sufficient to alert the average person that such conduct is prohibited.

Anspach suggests that our interpretation will lead to arbitrary enforcement. He argues the State effectively bootstrapped his mere child seat violations, normally punishable only by fine, into a charge with a potential of eight years in prison. When there is sufficient evidence to charge a suspect with a particular crime, it does not matter that his conduct may also constitute a violation of a lesser offense with a lighter penalty. State v. Caskey, 539 N.W.2d 176, 177-78 (Iowa 1995). “When two statutory provisions are reconcilable, the prosecutor has discretion to choose what charges to file.” Id. at 178. Not only did Anspach violate the child restraint ordinance, he was speeding and then tried to elude police. Given these additional facts, the application of this section to Anspach does not encourage arbitrary enforcement.

Further, the fact that the children’s caretakers were not also charged with child endangerment for their role has no affect on Anspach’s culpability or responsibility for creating the harm. As noted above, the decision to charge an individual is left to the discretion of the State. Id. Accordingly, “[w]hatever ambiguity may arguably exist at the edges of this statute,” an ordinary person in these circumstances would have notice his actions were creating a substantial risk to the safety of his young passengers. See Hunter, 550 N.W.2d at 466.

B. The Sufficiency of the Evidence of Substantial Risk

Anspach argues that there was insufficient evidence to prove substantial risk beyond a reasonable doubt. The State of Iowa, as well as the City of Des Moines, has articulated that any time a child is placed in an applicable moving vehicle, without proper restraints, a safety risk is created. Iowa Code § 321.446(1), (2); Des Moines, Iowa, Municipal Code ch. 114, art. X, div. 4, § 114-446 (2001). Although the mere violation of this Code section does not impute negligence to the driver nor would it be admissible in a civil case, it is a relevant factor to determine if a substantial risk is present in a criminal child endangerment case. See Iowa Code § 321.446(6). Also relevant are facts that a driver violates safe driving principles. Stokes v. Lundeen, 168 Or.App. 430, 7 P.3d 586, 591 (2000) (“All vehicle occupants, whether adults or children, are exposed to [a] risk of injury when a vehicle speeds .... ” (citation omitted)).

We find there was sufficient evidence that Anspach’s actions were creating a substantial risk to the safety of his young passengers. If he had gotten into an accident, which was a real possibility given his speeding, swerving, and attempts to elude police, these children could have been easily injured given their size and location in the truck. There was ample testimony from police and the women in the truck that Anspach’s driving caused fear for life or injury. There was also testimony that the children were upset and crying when the officer approached the vehicle. As such, when evidence of the failure to properly secure young children in safety seats is combined with evidence of Anspach’s driving conduct, sufficient evidence of child endangerment exists.

C. The Applicability of Section 726.6(l)(a) to Anspach’s Situation

This issue involves the argument that there was insufficient evidence of control to convict Anspach. We must decide then whether Anspach had “control” under the meaning of the statute.

Anspach certainly had control over how he drove the car and whether he sped. He made the decision to accelerate or swerve to get away from the police. As the owner of the vehicle, it was Anspach’s sole right to decide who he allowed to be present in his truck. This control gave him the right to refuse to take the women on errands. Moreover, it is the operator’s responsibility, regardless of relationship, to ensure passengers are properly secured. Iowa Code § 321.446(4). Anspach was in a position to dictate how the children would be secured in his truck.

Whether this is the type of control the statute contemplates is the question. An-spach argues that he did not have the right of control over the children because their guardians were present. Therefore, he maintains he cannot be guilty of child endangerment. We disagree. The definition of control is: “To exercise authority or dominating influence over....” American Heritage Dictionary 319. Whatever control Ida and Carla had initially was surrendered to Anspach when they placed the children in his truck cab, got in the truck bed, and allowed him to drive. A driver of a car has complete control over where to drive, how fast to drive, and how to drive. Testimony indicated the women were screaming for Anspach to slow down, but he ignored their pleas. He was the only one in charge of the situation at this time; Ida and Caída were in no position to prevent his actions.

The statute clearly does not limit its reach to only those with custody of the child, ie., the child’s parents, legal guardian, or babysitter. It was rewritten in 1985 to include those adults having “control” over the child as well. 1985 Iowa Acts ch. 180, § 3. The term control has a broader meaning than custody. State v. Johnson, 528 N.W.2d 638, 640-41 (Iowa 1995).

[A]n individual could have “control” over a child without also having ordinary custody of a child. “Control” only refers to the state of having restricting or governing power over someone, while “custody” implicates not only a power of oversight but also a responsibility for the care of an individual. Therefore, the reach of section 726.6 is broader than section 726.3 [which just talks about custody].

Id. at 641 (citation omitted). Here, An-spach had control over the instrumentality contributing to the risk to the children in the truck. As such, we agree with the district court that the meaning of control “applies to a person who has the ability to control the risk that the statute prohibits.”

Further, the statute does not limit the applicability of the control element to only those times when a guardian or someone with custody is not present. See State v. Friend, —• N.W.2d -, 2001 WL 355674 (Iowa Ct.App.2001). Recently, the Iowa Court of Appeals had occasion to address this issue under substantially similar facts. A grandfather brought his grandson to Iowa on a trip. While in Iowa, they accepted a ride from the child’s uncle, Joel Friend. Friend’s truck was pulled over by police, and he was arrested for driving under the influence of alcohol. He was charged both with an OWI and with child endangerment. Iowa Code §§ 321J.2(l)(a), 726.6(l)(a).

Under the child endangerment charge, Friend argued that with the custodial grandparent present, the element of control was inapplicable. Citing our decision in Johnson, the court of appeals recognized that the term “control” easily encompassed the “act of driving the vehicle in which [the] young nephew was a passenger. Although [the defendant] was not charged with overseeing [the child’s] welfare ..., he was in control of the truck immediately before the officer stopped it.” Friend, — N.W.2d at -, 2001 WL 355674 at ⅜2. We agree that “a person need not have responsibility for a child to exert control over that child.” Id. at ■-, 2001 WL 355674 at *1.

In the 2001 session, the Iowa Legislature amended section 726.6 to include the phrase, “For the purposes of subsection 1, ‘person having control over a child or a minor’ means ... [a] person who operates a motor vehicle with a child ... or minor present in the vehicle.” S.F. 63, 79th G.A. § 4 (Iowa 2001). Anspaeh argues this new language signifies the clear intent of the legislature to change the reach of the statute. He maintains the amendment is evidence that the version he was convicted under did not apply to motor vehicle operators. Because we do not believe the control element is ambiguous, we need not address this subsequent history. See State v. Guzman-Juarez, 591 N.W.2d 1, 3 (Iowa 1999). Nevertheless, we find this was a clarification of the law, not a change, and therefore, our conclusion would be the same.

In summary, Anspaeh has failed to prove section 726.6 has no constitutional basis as applied to his actions. His actions created a substantial risk to his young passengers’ safety. Finally, Anspaeh was in control of his actions and the consequences of his driving. Therefore, he had control over the children in the truck as required by the statute. We affirm An-spach’s conviction.

AFFIRMED.


author: Alan C. Page Associate Justice

text:
    In Re Petition for DISCIPLINARY ACTION AGAINST Gregory Allen CARPENTER, an Attorney at Law of the State of Minnesota.
    No. C8-99-969.
    Supreme Court of Minnesota.
    April 5, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary and a supplementary petition for disciplinary action alleging that respondent Gregory Allen Carpenter has committed professional misconduct warranting public discipline, namely, neglecting four client matters, failing to adequately communicate with misrepresenting to a client the status of the matter, failing to maintain proper trust account books and records, improperly withdrawing from the representation of two clients in immigration matters, failing to appear pursuant to a subpoena served upon Mm, and failing to cooperate in the disciplinary investigation in violation of Minn.R.Prof. Conduct 1.3, 1.4, 1.15, 1.16(d), 3.2, 3.4(a) and (d), 4.1, 8.1(a)(3), 8.4(c) and 8.4(d), Lawyers Professional Responsibility Board Opinion No. 9, and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). In addition, in the supplementary petition for disciplinary action the Director originally charged respondent with misappropriating a retainer paid to him by his client. The Director pursuant to stipulation filed with this Court, has withdrawn the allegations of misappropiation and neglect in one of the client matters.

Respondent admits his conduct has violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is indefinite suspension with a minimum term of two years retroactive to November 1, 1999, and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly-recommended disposition.

IT IS HEREBY ORDERED that respondent is indefinitely suspended for a minimum period of two years retroactive to November 1, 1999, and respondent shall pay $900 in costs and disbursements pursuant to Rule 24, RLPR.

BY THE COURT:

Alan C. Page

Associate Justice