text:
    2008 ND 132
    Christopher BARROS, Petitioner and Appellant v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
    No. 20080066.
    Supreme Court of North Dakota.
    June 26, 2008.
    Kelly M. Armstrong, Reichert Armstrong Law Office, Dickinson, N.D., for petitioner and appellant.
    Douglas B. Anderson, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for respondent and appel-lee.
   SANDSTROM, Justice.

[¶ 1] Christopher Barros appeals a district court judgment affirming an administrative hearing officer’s decision to suspend his driving privileges for 91 days following his arrest for driving under the influence of intoxicating liquor. We affirm.

I

[¶ 2] On October 19, 2007, Officers Michael Kapella and William Stepp of the Mandan Police Department arrested Bar-ros for being in actual physical control of a vehicle while under the influence of intoxicating liquor. Barros was taken to the Morton County Jail, where a blood test was administered. The blood test indicated Barros had an alcohol concentration of 0.13 percent by weight. Barros requested an administrative hearing following the arrest.

[¶ 3] At the hearing, Barros argued that chain of custody for the blood sample was not sufficiently established. Form 104, which contains the blood test results, lists two different dates regarding when the blood was collected. The nurse who drew the blood wrote “10/19/07” as the date the specimen was obtained. In the “For Laboratory Use” portion of the form, Cindy Leingang, who certified that she received the blood specimen, wrote “date of sample collection on tube label 10/18/07” in the space labeled “Remarks.” Officer Kapella acknowledged the different dates on Form 104, testifying the reason for the difference in dates was “[pjrobably bad handwriting on my part, obviously.” He testified he filled out the label that was fixed over the tube containing the blood sample drawn from Barros. He testified he intended the date on the tube label to be “10/19/07,” but it was possible he wrote “10/18/07” by mistake, because he has bad handwriting. He testified he did not do any more blood draws on October 18 or October 19; Barros’s was the only blood draw he was involved with. He testified he completed the specimen submitter’s checklist portion of Form 104, which listed “10/19/07” as the date the blood sample was obtained. He testified he completed all of the check-marked items on the checklist. He testified he completed the top portion of Form 104, which contains the subject’s name, the specimen submitter’s name, the specimen collector’s certification, and an area labeled “For Laboratory Use,” which contains the specimen receiver’s certification. He testified he was present when the nurse who administered the blood draw completed the blood specimen collector portion of Form 104. The nurse wrote “10/19/07” as the date the specimen was obtained. He testified that the sample was placed in a protective container and that he kept the container with him at all times until he dropped it off in the mailbox to be sent out to the lab for testing.

[¶ 4] Officer Stepp testified he was also present when the blood sample was taken. He testified the blood was drawn on October 19, 2007. He testified he observed Officer Kapella complete the specimen submitter’s checklist and affix the label over the tube containing Barros’s blood specimen approximately a minute or so after the blood was drawn.

[¶ 5] Barros objected to the admittance of Form 104, arguing that chain of custody had not been established. The hearing officer overruled the objection, and Form 104 was admitted. Barros’s driving privileges were suspended for 91 days. The district court affirmed the hearing officer’s decision.

[¶ 6] Barros timely requested an administrative hearing under N.D.C.C. § 39-20-05. The hearing officer had jurisdiction under N.D.C.C. § 39-20-05. The notice of appeal from the Department of Transportation’s decision to the district court was properly filed within seven days under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 39-20-06. Barros filed a timely notice of appeal from the district court judgment under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-32-49.

II

[¶ 7] The review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Leno v. Dep’t of Transp., 2008 ND 10, ¶ 6, 743 N.W.2d 794. The district court, under N.D.C.C. § 28-32-46, and this Court, under N.D.C.C. § 28-32-49, must affirm an agency’s order unless:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28-32^6.

[¶ 8] We discussed our standard of review of an administrative agency’s decision in Kiecker v. N.D. Dep’t of Transp., 2005 ND 23, ¶ 8, 691 N.W.2d 266.

On appeal, courts “must review an appeal from the determination of an administrative agency based only on the record filed with the court.” When reviewing an administrative agency’s factual findings, “we do not make independent findings of fact or substitute our judgment for that of the agency.” We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record. “An agency’s decisions on questions of law are fully reviewable.”

Id. (citations omitted).

Ill

[¶ 9] On appeal, Barros argues the blood sample he submitted was inadmissible because the Department failed to present evidence establishing a chain of custody for the blood sample. Subsections (5), (8), and (10) of section 39-20-07, N.D.C.C., govern the admissibility of blood sample test results:

Interpretation of chemical tests. Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, drugs, or a combination thereof, evidence of the amount of alcohol, drugs, or a combination thereof in the person’s blood at the time of the act alleged as shown by a chemical analysis of the blood, breath, saliva, or urine is admissible. For the purpose of this section:
5. The results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the director of the state crime laboratory or the director’s designee, and by an individual possessing a certifícate of qualification to administer the test issued by the director of the state crime laboratory or the director’s desig-nee. The director of the state crime laboratory or the director’s designee is authorized to approve satisfactory devices and methods of chemical analysis and determine the qualifications of individuals to conduct such analysis, and shall issue a certificate to all qualified operators who exhibit the certificate upon demand of the person requested to take the chemical test.
8. A certified copy of the analytical report of a blood, urine, or saliva analysis referred to in subsection 5 and which is issued by the director of the state crime laboratory or the director’s designee must be accepted as prima facie evidence of the results of a chemical analysis performed under this chapter. The certified copy satisfies the directives of subsection 5.
10. A signed statement from the individual medically qualified to draw the blood sample for testing as set forth in subsection 5 is prima facie evidence that the blood sample was properly drawn and no further foundation for the admission of this evidence may be required.

[¶ 10] Form 104, drafted by the State Toxicologist, contains directions and a checklist to ensure proper collection and submission of blood samples. City of West Fargo v. Hawkins, 2000 ND 168, ¶ 16, 616 N.W.2d 856. Fair administration of a blood test can be established by proof that those directions have been scrupulously followed; however, “scrupulous” compliance does not mean “hypertechnical” compliance. Id.

[¶ 11] Form 104 has two primary functions. First, the certification of the blood specimen collector “ensures that the scientific accuracy and reliability of the test are not affected by improper collection or preservation of the blood sample.” State v. Jordheim, 508 N.W.2d 878, 883 (N.D.1993) (quoting State v. Schwalk, 430 N.W.2d 317, 322 (N.D.1988)). “Second, the certifications of the specimen submitter and receiver provide ‘an evidentiary shortcut for establishing chain of custody’ by ensuring the specimen is received in the same condition as it was submitted.” Jordheim, at 883 (quoting Schwalk, at 322).

[¶ 12] Barros does not argue the blood test was scientifically inaccurate. He argues chain of custody is lacking because of the different dates listed on Form 104. He argues Form 104 is inadmissible without additional evidence establishing a chain of custody. “While it is not necessary for the State to call all persons who have handled the blood sample in order to introduce the test results, it is incumbent upon the State to show that the sample tested is the same one originally drawn from the defendant.” State v. Reil, 409 N.W.2d 99, 104 (N.D.1987).

[¶ 13] Officer Kapella acknowledged the different dates on Form 104, testifying the difference may have been due to his poor handwriting. He testified he followed all of the instructions on the specimen submitter’s checklist portion of Form 104. He testified he completed the top portion of Form 104, which contained the names of both Barros and Kapella. He testified he observed the nurse administer the blood test. He testified he placed the label on the vial containing the blood sample. He testified that the sample was placed in a protective container and that he kept the container with him at all times until he dropped it off in the mailbox to be sent to the lab for testing. He testified he was not involved in any other blood draws on October 18 or 19; Barros’s was the only one. Officer Stepp also testified he observed the blood test being administered. He testified he observed the nurse draw the blood and Officer Kapella complete the specimen submitter’s checklist. He testified this was all done on October 19, 2007.

[¶ 14] Officer Kapella testified he followed all of the instructions on the specimen submitter’s checklist. The instructions on the checklist are as follows:

[1.] Used an Intact Kit.
[2.] Affixed Completed Specimen Label/Seal Over the Top and Down the Sides of the Blood Tube.
[3.] Placed the Blood Tube Inside the Blood Tube Protector and Then Placed it in the Plastic Bag Provided. (Do Not Remove Liquid, Absorbing Sheet)
[4.] Placed the Plastic Bag and Completed Top Portion of This Form in the Kit Box and Closed it.
[5.] Affixed Tamper-Evident Kit Box Shipping Seal on Kit Box.

Instruction 4 indicates the top portion of Form 104 is placed in the kit box with the blood specimen. Barros’s name and Officer Kapella’s name were both contained on the top portion of the form, along with Leingang’s certification that she received the blood specimen. Leingang also assigned a “Laboratory Case Number” to the specimen, which corresponded with the case number on the Office of Attorney General, Crime Laboratory Division’s Analytical Report certifying Barros had a blood alcohol concentration of 0.13 percent by weight. The information on the top portion of Form 104, Officer Kapella’s testimony regarding his handling of the blood sample, and Officer Stepp’s testimony were sufficient to clear up any chain of custody concerns. We conclude a reasoning mind could have reasonably found that a sufficient chain of custody was established and that Barros’s blood was the blood tested in this case.

[¶ 15] Barros points to cases in which this Court has held blood alcohol test results were inadmissible when the State failed to prove chain of custody either through compliance with the directions on Form 104 or through other evidence. See State v. Nygaard, 426 N.W.2d 547 (N.D.1988); State v. Wright, 426 N.W.2d 3 (N.D.1988); Reil, 409 N.W.2d 99. This case, however, differs from those cases. In Nygaard, 426 N.W.2d at 549-550, and Wright, 426 N.W.2d at 5, the arresting officer failed to properly seal and label the vial as required in the directions for sample collection and submission on Form 104, and no testimony was offered to verify that the blood tested was the same blood collected. In Reil, 409 N.W.2d at 101-102, the arresting officer did not testify as to the procedures used to preserve the blood sample, nor did he testify as to its handling and mailing. Neither of those facts was present in this case. Officer Kapella testified he followed all of the directions on Form 104. He also testified as to the handling and mailing of the blood sample. Officer Kapella’s testimony, in addition to the other evidence discussed above, was sufficient to clear up any concerns regarding chain of custody.

IV

[¶ 16] The district court’s judgment is affirmed.

[¶ 17] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2008 SD 35
    GETTYSBURG SCHOOL DISTRICT 53-1, Plaintiff and Appellee, v. HELMS AND ASSOCIATES, a division of Schumucker, Paul, Nohr and Associates, Inc., Defendants, and Bituminous Paving, Inc., Defendant and Appellant.
    No. 24543.
    Supreme Court of South Dakota.
    Argued Feb. 13, 2008.
    Decided April 30, 2008.

      Kenneth E. Barker, Michael Trump of Barker Wilson Law Firm, LLP, Belle Fourehe, SD, for plaintiff and appellee.
    Ronald G. Schmidt of Schmidt, Schroyer, Moreno, Lee & Bachand, PC, Rapid City, SD, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Bituminous Paving, Inc. (Bituminous) appeals from a jury verdict in favor of the Gettysburg School District (District) for faulty construction of an outdoor track. We affirm.

[¶ 2.] The District entered into a contract with Bituminous for the construction of an outdoor track and with Helms and Associates (Helms) for engineering services of designing and inspecting the construction of the track. Bituminous’ contract with the District required Bituminous to remove the old track, prepare the base of the new track, and lay the asphalt running surface. Bituminous appeared to have completed the project by the required deadline of September 2002; however, unknown to the District, Bituminous had failed to adequately compact the soil sub base and gravel layer that was designed to support the asphalt top. Defects developed within a few weeks of the track’s completion. The District’s athletic director and track coach reported noticeable construction problems and safety concerns with the track including uneven lanes and depressions in the surface. A school board member additionally observed cracking asphalt and “pop-outs.” By October 22, 2002, Helms wrote Bituminous with concern about the cracking of the asphalt and with a directive that the cracking be examined in the spring.

[¶ 3.] The following spring, Helms provided Bituminous a punch list of needed repairs to the track. The needed repairs included fixing depressions in the asphalt, uneven surface cracking, and areas that held water. Bituminous finished its repair work in August of 2003; however, the repair work did not fix the problems and arguably made them worse. Thereafter, Bituminous’ project manager offered to re-repair the defective areas. Helms followed up with a letter to the District on April 1, 2004, proposing how Bituminous should address the known surface deficiencies in the track. At its April board meeting, in response to Helms’ proposal, the District discussed its frustration with the year-and-a-half delay in completion of the track repairs. Later, representatives of Helms, the District, and Bituminous met and inspected the track. The District conditionally accepted Helms’ proposal for the completion of the re-repair work on the track surface, including arrangements for payment. Helms memorialized the agreement on May 25, 2004. Thereafter, Helms directed Bituminous to complete five specific work items between May 27 and August 15, 2004.

[¶ 4.] In the meantime, the District met with Sam Fisher, a certified track builder and owner of Fisher tracks, to inspect the track’s defects on June 7, 2004. On June 10, 2004, Fisher faxed two reports to the District that raised concerns about whether the needed re-repair work set forth in Helms’ letter to Bituminous would address the track’s underlying structural defects. According to Fisher, trying to fix or patch the track’s structural faults would be nearly impossible.

[¶ 5.] Reacting to Fisher’s concerns, the District’s Superintendent contacted and instructed Bituminous not to return to the track and not to perform its proposed “re-repair” work. On August 8, 2005, the District officially rescinded the “re-repairs” agreement with Bituminous and voted to bring an action against both Helms and Bituminous because of the defective repairs and underlying structural defects.

[¶ 6.] The District retained two experts, Fisher and Chunhua Han, PhD PE (a paving expert). After a closer inspection, Fisher and Han determined that the track’s defects were both structural and material. Structurally, the ground base material and subsequent top layers of asphalt were unevenly laid and compacted. Also, in several locations, the track sloped opposite of the designed slope direction, allowing water to pool improperly and accumulate. The asphalt also failed to meet material specifications. It contained shale-like material that caused “pop-outs” or holes along the surface that allowed water to pool up to three-quarters of an inch in depth. The overall condition of the track caused the Board to be concerned about the students’ safety.

[¶ 7.] The District settled its claims against Helms prior to trial. At trial, the jury determined that Bituminous breached its agreement with the District, negligently constructed the track, breached express or implied warranties and breached its duty of good faith to the District. The jury found that the District had been damaged in a total amount of $215,500, allocating 70% liability to Bituminous. The jury also awarded prejudgment interest on $182,000 of the District’s damages, beginning July 1, 2004. In post trial motions, the trial court granted the District’s motions for apportionment of prejudgment interest, statutory costs, disbursements and attorneys’ fees against Bituminous. The judgment against Bituminous totaled $278,450 (including costs and prejudgment interest). Bituminous appeals raising several issues.

1. Bituminous claims that the District’s breach of contract claim is barred, estopped and/or waived because the District failed to satisfy conditions precedent in the contract.

[¶ 8.] Bituminous contends that the District should be barred from bringing a claim because (a) the District failed to plead that the conditions precedent were satisfied, (b) the District failed to provide Bituminous proper notice of defects, and (c) the District failed to seek a decision from the engineer or wait for “substantial completion” of the project before seeking court action. Bituminous also argues that the District’s failure to meet these conditions precedent constituted waiver and es-toppel.

a. Failure to plead that conditions precedent were satisfied

[¶ 9.] Bituminous claims that the District should not be permitted to sue on the contract because, as required by SDCL 15 — 6—9(c), it failed to plead that all conditions precedent were satisfied. Bituminous, however, did not raise this issue to the trial court, and we will not consider it for the first time on appeal. Hall v. State ex rel. South Dakota Dep’t of Transp., 2006 SD 24, ¶ 12, 712 N.W.2d 22, 26 (stating “[w]e have repeatedly stated that we will not address for the first time on appeal issues not raised below”) (citations omitted).

b. Failure to give proper notice of defects

[¶ 10.] Bituminous claims that the District did not provide Bituminous with contractually required seven (7) days written notice of defects in the track pri- or to bringing a lawsuit for its defective work. The record shows that Bituminous did receive written notice from Helms of the known defects as early as October 22, 2002. In response to the notice, Bituminous attempted to fix the defects, but was unsuccessful. Helms then provided yet another written re-repair list. However, when the District sought another opinion from Fisher, it discovered that Helms’ list of repairs was inadequate and only addressed surface problems and that the track would need to be rebuilt. Bituminous claims that it technically should have been provided written notice of all the defects that the District learned from Fisher before the District brought a lawsuit. Bituminous’ notice argument is without merit. Under the terms of the agreement, Bituminous was sufficiently provided notice of the known defects and had the opportunity to correct them. Although additional defects later became apparent to the District, they were not obligated to amend the previous notices of defects. Indeed, the totality of defects did not become fully known to the District until the discovery phase of litigation.

[¶ 11.] Moreover, although Bituminous veils this issue under notice grounds, the heart of its argument is that Bituminous was not allowed the opportunity to complete the project. Bituminous presented this exact defense to the jury. Indeed, Bituminous proffered and the court instructed on this exact issue as follows:

You are instructed that Plaintiff Gettysburg School District 53-1 is not entitled to be compensated for work that remained unfinished if you find that Bituminous Paving, Inc. was willing to perform such work but was ordered off the job and not allowed to complete such work.

Obviously, based on this instruction, the jury considered whether Bituminous was provided the opportunity to complete the project as contracted. The quoted instruction plainly directed the jury to offset damages that resulted from the District excluding Bituminous from the project, regardless of whether the exclusion was proper or improper. Furthermore, it is possible that the jury reduced Bituminous’ liability because of this instruction. We presume that juries understand and abide by instructions. First Nat’l Bank of Minneapolis v. Kehn Ranch, Inc., 394 N.W.2d 709, 720 (S.D.1986).

c. Failure to seek engineer’s decision or wait for “substantial completion”

[¶ 12.] Bituminous next claims that the District did not satisfy the condition precedent of seeking a decision from Helms prior to filing this suit, citing contract provision 9.09. Provision 9.09 made the engineer “the initial interpreter” of the contract requirements and “judge” of the work’s acceptability. The provision required Helms to decide a dispute before either party could seek a remedy under the law. On at least two occasions, the District provided notice to Helms of deficiencies in the work. Helms, in turn, conveyed to Bituminous a decision/plan on what must be done to remedy the District’s concerns. After the District learned that Helms’ plan would not remedy the defects, the District decided to sever its relationship with both Helms and Bituminous and pursue legal remedies against both of them. Contract provision 13:09 gave the District the right to “exclude [Bituminous] from all or part of the Site, take possession of all or part of the Work and suspend [Bituminous’] service related thereto” “if [Bituminous] fails to perform the Work in accordance with the Contract Documents.”

[¶ 13.] The District followed the contract process in attempting to repair the defective track; however, after rejecting Helms’ and Bituminous’ plan to repair the track, the District was entitled to sue on the contract. Moreover, the District sued Helms for its negligence as well. The District had completely lost confidence in the work of Helms and Bituminous because all attempts to repair the track’s defects had failed. The contract did not contemplate infinite opportunities to repair a structurally defective project that was scheduled for completion almost two years earlier. Nor did the contract require the District to submit its dispute to the engineer, who was also alleged to have breached the contract.

[¶ 14.] Bituminous also claims that the contract required the District to obtain a certificate of completion from the engineer as a condition precedent to pursuing legal action. The District brought this action nearly three years after the initial completion date of the project and after the final payment had been approved. During that time, both Helms and Bituminous were provided ample opportunity to cure the defects and for Helms to issue or Bituminous to request a certificate of substantial completion. In fact, the contract charged Bituminous, not the District, with the responsibility to request a certificate of substantial completion. Only after Helms’ and Bituminous’ attempts to repair the problems failed and the District realized that the track could not be repaired, did the District reject the work. Bituminous now clings to technical aspects of the contract in an attempt to set aside the adverse jury verdict. The basis of Bituminous’ claims are insufficient to support dismissal of the District’s breach of contract claim or implicate waiver or estoppel. Consequently, we affirm the verdict for the District on its breach of contract claim.

2. Bituminous claims that the negligence cause of action is barred because of the jury’s apportionment of fault.

[¶ 15.] Bituminous claims that since the jury determined that Bituminous was responsible for 70% of the damages, the relative fault of the District must have been 30%, which as a matter of law is more than slight and a bar to the District’s negligence claim. The verdict form directed the jury first to answer “questions 1 through 4,” which corresponded to each of the claims. Therefore, as to each claim (breach of contract, negligence, warranty, and good faith and fair dealing) the jury had to find for the District or Bituminous. In addition, the verdict form directed the jury as follows:

If you answered in favor of Gettysburg School District on ANY of questions 1 through 4, please complete the following:
1. We find that Gettysburg School District has been damaged in the amount of $_
2. We find that Bituminous Paving is _% responsible for Gettysburg School District’s damage.
3. We award Gettysburg School District prejudgment interest on $_ from and after

In answering the second question, the jury generally found Bituminous 70% responsible for the damage.

[¶ 16.] In addition to instructing the jury on negligence and contributory negligence, the court also gave instructions on the contract related claims. The court instructed the jury to consider all claims or cross-claims against Helms as follows:

The District’s claims against Helms have been settled prior to trial. Nevertheless, the cross-claim by Bituminous against Helms still remains and thus the jury must consider whether Helms is responsible for the defective track which the District is seeking civil damages, and if so, to what degree it is responsible.

Since the jury found in favor of the District on all of the claims, the general verdict on percentage of responsibility is not tied to any particular cause of action. Thus, the apportionment could be based on the relative responsibility between Helms and Bituminous on the breach of contract claim or the relative fault between Bituminous and the District on the negligence claim, or a combination of the two claims. The fact that the jury found Bituminous responsible for 70% of the damages does not necessarily equate to the District being 30% contributorily negligent. We presume a general verdict is properly based on one or all of the presented theories. We said in Allen v. McLain that “[a]s between proper and improper grounds or theories, a general verdict will often be presumed to be based on that ground or theory on which it can properly be sustained.” 75 S.D. 520, 529, 69 N.W.2d 390, 395 (1955) (citation omitted). See Thomas v. Sully County, 2001 SD 73, ¶¶ 8-9, 629 N.W.2d 590, 592-93 (holding that the jury verdict must be upheld if it could be sustained on one of the theories properly presented); Martinmaas v. Engelmann, 2000 SD 85, ¶ 72, 612 N.W.2d 600, 615 (Konen-kamp, J., concurring) (stating that “when a jury returns a general verdict encompassing two or more issues and the verdict is supported by at least one issue, the case will not be reversed”).

3. Bituminous claims that the verdict should be reversed because the verdict form was confusing and prejudicial.

[¶ 17.] Bituminous generally complains that the special verdict form was confusing and prejudicial when read in light of the related jury instructions for contributory negligence, comparative fault, and joint tortfeasor apportionment of fault.

[¶ 18.] Supreme Court Rule 49, codified in SDCL 15-6-49(a) allows for special verdicts. The rule on special verdicts provides in relevant part as follows:

The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall 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....

SDCL 15-6-49(a). The use of a special verdict form is within the sound discretion of the trial court. Miller v. Hernandez, 520 N.W.2d 266, 270 (S.D.1994). We review the decision to utilize a special verdict form under the abuse of discretion standard. Id. “Abuse of discretion refers to ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Id. (quoting Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D.1991)).

[¶ 19.] Bituminous first challenges the initial interrogatory in the verdict form, which questioned whether Bituminous had breached its agreement with the District. The court noted that Helms had settled out of court. The question stated as follows:

1. Gettysburg School District claims that both Helms & Bituminous Paving breached their agreements with the Gettysburg School District. (Helms has settled out of court.)
_ We find that Gettysburg School District has proven its claim of breach of agreement against Bituminous Paving.
(Check one)
_ We find that Bituminous Paving has not breached its agreement with Gettysburg School District.

Bituminous also challenges the second special interrogatory, which stated as follows:

2. Gettysburg School District claims that Helms and Bituminous Paving were negligent in the design and/or construction of the Gettysburg track. (Helms has settled out of court).
_ We find that Gettysburg School District has proven its claim of negligence against Bituminous Paving. (Or we find that Gettysburg School District’s negligence was slight or less than slight as compared to any negligence of Bituminous Paving and have adjusted our award of damages accordingly.)
(Check one)
_ We find that Bituminous Paving was not negligent in the construction of the Gettysburg track.

The court further instructed that if the jury found in favor of the District on any of the claims, the jury was to designate Bituminous’ percentage of responsibility. Bituminous complains that these special interrogatories did not permit the jury to determine if Helms was negligent or if the District was contributorily negligent.

[¶ 20.] Although there was no space on the verdict form for the jury to designate whether Helms or the District were negligent or contributorily negligent, the trial court properly instructed the jury on these aspects of the law in other instructions. The trial court also instructed the jury to allocate degrees of fault between the co-defendants, Helms and Bituminous, as well as the contributory negligence of the District. Here, the court required the jury to return a finding on each cause of action in addition to a general verdict determining the District’s damages and Bituminous’ percentage of responsibility for those damages.

[¶21.] The court’s jury instructions, as a whole, adequately explained and instructed the jury on how to answer the interrogatories. Therefore, considering all of the jury instructions along with the verdict form, it is apparent that the trial court correctly instructed on the law and that the verdict form was neither confusing nor prejudicial. See Kehn Ranch, Inc., 394 N.W.2d at 720 (“The jury was properly instructed on the nature of the applicable comparative fault statute and the verdict form did not preclude following those instructions. It is, of course, presumed that the jury understood and abid-ed by these instructions.”) (citing Fjerstad v. Sioux Valley Hospital, 291 N.W.2d 786, 788 (S.D.1980)). Bituminous has failed to establish the trial court abused its discretion by using the special verdict form.

4. Bituminous claims that the award of prejudgment interest was erroneous as a matter of law.

[¶22.] We have previously stated that “[pjrejudgment interest is mandatory, not discretionary in an action for recovery of damages.” Setliff v. Stewart, 2005 SD 40, ¶ 46, 694 N.W.2d 859, 871 (citation omitted). SDCL 21-1-13.1 provides in pertinent part that:

Any person who is entitled to recover damages, whether in the principal action or by counterclaim, cross claim, or third-party claim, is entitled to recover interest thereon from the day that the loss or damage occurred, except during such time as the debtor is prevented by law, or by act of the creditor, from paying the debt. Prejudgment interest is not recoverable on future damages, punitive damages, or intangible damages such as pain and suffering, emotional distress, loss of consortium, injury to credit, reputation or financial standing, loss of enjoyment of life, or loss of society and companionship. If there is a question of fact as to when the loss or damage occurred, prejudgment interest’ shall commence on the date specified in the verdict or decision and shall run to, and include, the date of the verdict or, if there is no verdict, the date the judgment is entered.

[¶ 23.] Bituminous argues that the damages were too uncertain to be taxed with prejudgment interest and also that all the damages impermissibly constituted future damages. Specifically, Bituminous claims that because the experts could not agree on a certain figure of damages and because of the necessary apportionment of fault the amount of damages were uncertain, and therefore, according to SDCL 21-1-11, cannot be taxed with prejudgment interest. We disagree. SDCL 21-1-11 does not apply to this case or any suit that has “commenced on or after July 1, 1990.” SDCL 21-1-13.2. The law clearly provides as follows: “The provisions of § 21-1-13.1 apply to any suit commenced on or after July 1, 1990. The provisions of §§ 21-1-11 and 21-1-13 apply to any suit commenced before July 1, 1990.” SDCL 21-1-13.2. In applying the present rule, we have said: “[T]he adoption of SDCL 21-1-13.1 in 1990 abrogated the rule that prejudgment interest cannot be obtained if damages remain uncertain until determined by a court. Under the present rule in SDCL 21-1-13.1, prejudgment interest is allowed from the day the loss or damage occurred regardless of whether the damages are certain.” City of Aberdeen v. Rich, 2003 SD 27, ¶ 19, 658 N.W.2d 775, 781 (internal citations omitted). Thus, “[p]rejudgment interest is allowed from the date of the loss regardless of whether the damages were known with certainty.” All Star Constr. Co., Inc. v. Koehn, 2007 SD 111, ¶ 24, 741 N.W.2d 736, 742. Moreover, a “[m]ere difference of opinion as to the exact amount of damages [is] not sufficient to excuse [a defendant] from compensating [a plaintiff] for loss of the use of its money.” Honomichl v. Modlin, 477 N.W.2d 599, 601 (S.D.1991).

[¶ 24.] Finally, Bituminous argues that any damages sustained by the District were future damages because the District has not expended funds to replace the defective track. Pre-judgment interest begins “from the day that the loss or damage occurred.” SDCL 21-1-13.1. The loss or damage occurred when the District received the faulty track. Just because the District has not incurred the expense of replacing the track does not make its loss a future damage. The trial court properly instructed the jury on how to determine damages and the date for prejudgment interest. Bituminous did not object to the prejudgment interest instructions. We must assume the jury followed the instructions and, based on the evidence, set July 4, 2004, as the date that the damages “occurred.” Kehn Ranch, Inc., 394 N.W.2d at 720 (stating that when a jury is properly instructed we “presume[ ] that the jury understood and abided by these instructions”) (citing Fjerstad, 291 N.W.2d at 788). See also Berry v. Risdall, 1998 SD 18, ¶ 12, 576 N.W.2d 1, 5 (stating where “a verdict is susceptible to more than one construction, the construction which sustains the verdict must be applied”) (citing Fjerstad, 291 N.W.2d at 788; Baker v. Jewell, 77 S.D. 573, 580, 96 N.W.2d 299, 304 (1959)). The prejudgment interest award was not erroneous as a matter of law.

5. Bituminous claims the trial court erred in awarding attorneys’ fees and expert witness costs

[¶ 25.] Finally, Bituminous contends that the court erred as a matter of law and/or abused its discretion in awarding attorneys’ fees and expert witness costs. It is well settled, that awarding attorneys’ fees and costs is allowed when expressly agreed to by the parties. Fuller v. Croston, 2006 SD 110, ¶ 41, 725 N.W.2d 600, 612 (citing Credit Collection Serv., Inc. v. Pesicka, 2006 SD 81, ¶ 6, 721 N.W.2d 474, 476); Rich, 2003 SD 27, ¶25, 658 N.W.2d at 781 (citing Matter of Estate of O’Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142). In this case, Article 13 of the contract’s general conditions expressly stated that if Bituminous’ work was found to be defective, as defined within the contract, Bituminous was responsible for all costs and disbursements, including attorneys’ fees, spent by the District in bringing a civil action. Moreover, Article 13.07 expressly states:

[The District] may have the defective Work removed and replaced, and all - Claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement ... will be paid by [Bituminous].

[¶ 26.] Because the contract provisions permitted the award of attorneys’ fees and other costs, the District merely had to establish, by a preponderance of the evidence, “[t]he basis for such an award.” Credit Collection Serv., 2006 SD 81, ¶ 6, 721 N.W.2d at 476 (quoting Jacobson v. Gulbransen, 2001 SD 33, ¶ 31, 623 N.W.2d 84, 91). Based on the verdict and contract provision, Bituminous has failed to establish that the trial court abused its discretion when it awarded attorneys’ fees, expert witness fees and other costs.

[¶ 27.] We affirm on all issues.

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

      . Bituminous also claims that other Articles in their contract requiring notice were not adhered to by the District. However, the contract provides for and supports a number of different methods of seeking remedies and fulfillment of the contract. The District properly applied the procedures of Article 13; therefore, we need not discuss whether other notice requirements were met for irrelevant portions of the contract.

      . During oral arguments, when questioned about how the purported lack of notice prejudiced Bituminous, Bituminous responded that if the District/Helms would have provided the seven days notice Bituminous would have cured all of the track’s defects within the seven days allotted by the contract.

      . Bituminous cites the case of Wood v. City of Crooks, 1997 SD 20, 559 N.W.2d 558 for this proposition.

      . Bituminous also claimed that the instructions on the warranty claim were confusing and prejudicial. Even assuming the instructions were erroneous and prejudicial to the extent that reversal on the warranty claim was granted, the verdict against Bituminous on the breach of contract claim, negligence claim, and breach of good faith and fair dealing claim still remains. Because we find that the verdict is sufficiently sustained on these other theories we need not address whether the trial court erred when it instructed on the warranty claim. See Thomas, 2001 SD 73, ¶¶ 8-9, 629 N.W.2d at 592-93 (holding that a general jury verdict must be upheld if it could possibly be sustained on one of the theories properly instructed).


author: GILBERTSON, Chief Justice.

text:
    2008 SD 38
    In the Matter of the ESTATE OF Mary Louise PRINGLE, Deceased.
    No. 24506.
    Supreme Court of South Dakota.
    Argued Jan. 9, 2008.
    Decided May 28, 2008.

      Eric J. Pickar, Gregory J. Erlandson, Allen G. Nelson of Bangs, McCullen, Butler, Foye and Simmons, L.L.P. Rapid City, South Dakota, Attorneys for appellants interested person Judith Maxwell & Thomas Pringle.
    Brian L. Utzman of Smoot & Utzman, P.C., Rapid City, South Dakota, Attorneys for appellee Ronald H. Pringle.
   GILBERTSON, Chief Justice.

[¶ 1.] On February 20-22 and 27, 2007, a trial was held in the South Dakota Seventh Judicial Circuit to decide the validity of land conveyances executed by Mary Louise Pringle (Mary) prior to her death and whether to admit for probate her last will and testament dated September 26, 2000. On March 27, 2007, the circuit court entered findings of fact and conclusions of law and on April 2, 2007, it entered its judgment and order validating the land conveyances and admitting the will to probate. Mary’s children, Judith Maxwell (Judy) and Thomas Pringle Jr. (Tom), appeal. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Mary and Thomas Pringle, Sr. (Tom, Sr.) were married in 1946. The couple raised four children, Judy, Ronald (Ron), Tom and Charles (Chuck). Mary and Tom, Sr. farmed in the Bridgewater, South Dakota area and later operated a laundry in Pierre, South Dakota for many years.

[¶ 3.] The farming operation consisted of the Pringle homestead quarter section and three additional quarters totaling 640 acres located in McCook County, South Dakota near Bridgewater. In the late 1960s Mary and Tom, Sr. turned the day-to-day farming operations over to Chuck. Chuck managed the farm until 1987. At that time Ron, who lived in Bridgewater, took over the farming operations.

[¶ 4.] Mary and Tom, Sr. eventually retired to a home in Hill City, South Dakota. The couple neighbored in Hill City with Joel and Gloria Pine. Joel was retired from the South Dakota Highway Patrol. He had worked in Pierre over the years and had known Mary and Tom, Sr. from their laundry business.

[¶ 5.] On February 25, 1988, Mary and Tom, Sr. executed wills. The wills provided that each spouse was primary beneficiary of the other’s estate, but that if either spouse predeceased the other, all of the surviving spouse’s real and personal property would be equally devised to Judy, Ron and Tom. Mary and Tom, Sr. held their real property in joint tenancy.

[¶ 6.] On March 18, 1998, Mary signed a power of attorney form “for healthcare purposes only” that was provided by the Rapid City Regional Hospital. Judy was designated as Mary’s health care agent. Tom was named first alternate and Ron was named second alternate. Joel and Gloria Pine served as witness to Mary’s signature on the document.

[¶ 7.] On April 13, 1998, Tom, Sr. died. At the trial, Gloria Pine testified that the death of Tom, Sr. marked the point at which Mary’s physical and mental health, as well as her personal hygiene began to gradually deteriorate. There is no dispute that following the death of Tom, Sr., Ron made frequent trips to Hill City to visit his mother. Several people from the Hill City area who had known Mary, including Pennington County Sheriffs Deputy, Jeromey Smith (Deputy Smith), who had been dispatched to her home repeatedly to check on her well being, and Mary’s friends and neighbors the Pines, offered testimony that Mary trusted Ron very much and came to rely on him to a great extent. The two exchanged daily telephone calls to the point that Ron would call his mother before leaving home so that she would know that she would not be able to reach him for a time.

[¶ 8.] In August 2000, Mary contacted her long-time attorney Michael Unke (Unke), a Bridgewater native practicing in Salem, South Dakota, about drawing up a durable power of attorney and living will (POA). Mary and Tom, Sr. had had a relationship with Unke that dated back to about 1988 when the couple had retained him to draft some farm leases. Unke thereafter had regular contact with Mary and Tom, Sr. Unke testified that Mary had seen a news article about POAs and had sent it to him and that she sought his opinion as to whether she should have one. Unke stated that during their discussion, Mary told him that she wanted Ron to make medical decisions and handle her affairs if she became unable to do so because she trusted him. Unke drafted the document and sent it to Mary in Hill City on or around August 18, 2000. The Pines and Neil Holzwarth (Holzwarth), vice president of First Western Bank in Hill City, testified that Mary subsequently contacted them and asked them to come to her home for the signing. On August 23, 2000, Holz-warth notarized the document while the Pines witnessed her signature. Ron was not present.

[¶ 9.] Earlier in August 2000, Ron and Tom stayed at Mary’s house in Hill City while attending the Black Hills Motorcycle Rally. While there, Tom drained the sewage from his motor home into the septic tank at his mother’s house. According to Ron, he helped Tom remove the cap from the clean-out so that Tom could run his sewer line into the tank. Ron then left, but told Tom to make sure that he replaced the cap when finished.

[¶ 10.] On September 9, 2000, Tom, who lived in Chamberlain, South Dakota, received a phone call from Mary, berating him for not properly replacing the cap to the clean-out, which Tom denied. Tom testified that at the conclusion of this call, Mary told him, “This was your mother. You’ll never hear from me again.” Disturbed by the call, Tom contacted Ron to inquire if he knew anything about the cap and why Mary would have become so agitated. According to Tom, Ron told him that he had been out policing the property after the Rally and found the cap askew, straightened it, and also informed Mary. Ron testified that when his mother asked if Tom was responsible he replied that he did not think so, but rather neighborhood kids, whom Mary had seen running about the yard recently, could have been responsible. Tom testified that he did not ever recall asking Ron to help straighten out the disagreement with his mother. Tom did not speak to his mother again until 2004.

[¶ 11.] Later on September 9, 2000, Tom contacted Judy to inform her about the call he had received from Mary. Judy, who lived in Pierre, became very upset with Mary based on Tom’s account of the call. That same day, Judy called her mother. According to her testimony, Judy did all of the talking and “didn’t give [Mary] a chance to say anything.” The telephone call ended when Judy hung up on her mother. Following the September 9 call, Judy had no contact with her mother until 2005.

[¶ 12.] In mid September 2000, Mary again contacted Unke. According to Unke, Mary discussed with him her desire to have the McCook County farm pass to Ron outside her will. Unke testified during a deposition and at trial that “it was very important to her” that the farm remained intact and in the Pringle name. He stated that in the past he had conversations with Mary where she indicated to him that “she was very close to Ron; that he had been handling the farm; and that she wanted to keep the farm in the family” and that Ron would do so. Conversely, Mary stated that Judy and Tom, who were not interested in farming “would just sell it to get the money.”

[¶ 13.] At Mary’s request, Unke drafted a deed conveying the McCook County farm to her and Ron in joint tenancy with right of survivorship. Unke also drafted a new will that expressly set out Mary’s intent to have joint tenancy property pass outside the will with the remainder of her estate to be divided equally among Judy, Ron and Tom. Unke sent the documents to Mary under separate covers of transmittal with instructions for proper execution. Mary again contacted the Pines and Holz-warth to assist with execution of the documents. On September 19, 2000, Holz-warth came to Mary’s house in Hill City to notarize her signature on the deed. On September 26, Holzwarth returned to Mary’s house to notarize her signature on the new will and there again met the Pines who acted as witnesses. Ron was not present at the signing of either document.

[¶ 14.] In 2002, Mary once again contacted Unke and requested that he draft another deed, this time to convey her home in Hill City to herself, Ron and his son Ronnie in joint tenancy. Unke drew up the deed and on September 20, 2002, sent it to her under cover of transmittal with instructions for proper execution. Again, Mary contacted Holzwarth and asked him to come to her house to notarize her signature on the deed. Mary signed the deed on September 27, 2002. On April 4, 2003, Mary signed a third deed transferring three lots in the City of Bridgewater to Ron for “$500.00 and other good and valuable consideration.”

[¶ 15.] Mary’s physical and mental deterioration accelerated during the latter part of 2003 into 2004 and in 2005, she was moved to a nursing home at the Beverly Healthcare facility in Rapid City. Mary died on August 4, 2005. Under the provisions of the September 26, 2000 will, Mary had nominated and appointed Ron as personal representative for the estate. On September 19, 2005, Ron filed a petition with the circuit court for formal probate of the will and acceptance of appointment. The February 20-22 and 27, 2007 trial followed Judy’s and Tom’s objection to the will and appointment of Ron.

[¶ 16.] Judy and Tom argued at trial that due to her failing mental and physical condition following the death of Tom, Sr. in 1998, Mary was incompetent and lacked testamentary capacity at the time she signed the September 26, 2000 will and that the will was the product of Ron’s undue influence upon her such that it was not valid. Moreover, they asserted that Ron took advantage of his confidential relationship with Mary and her failing condition in order to fracture their relationship with her so that he could gain title to the McCook County farm, the Hill City home and the Bridgewater lots. However, when Judy was asked at trial what actions Ron took to exert undue influence on her mother to their detriment, Judy responded that she had no specifics. She was also asked if she had seen any documents where Ron had indicated to his mother that he was “entitled to everything.” Again, Judy replied that she had seen none. Tom likewise could point to no statements or actions by Ron that influenced Mary to convey the property and execute a new will. In addition, Deputy Smith testified that while Ron was the only family that frequently visited Mary, he could recount no instance of him influencing Mary to do anything. Still, Judy stated the supposed actions of Ron were “the only explanation I can find in my mind why she [Mary] stopped talking to me and Tom [in the September 2000 time frame] and did all these severe changes in her life.” Specifically, with respect to Tom’s relationship with Mary, Judy went on to state, she believed that Ron “could have done something ” to repair the relationship, but did not. However, when Tom was asked whether he had asked Ron to intercede on his behalf, Tom stated, “I don’t believe I asked him.... I don’t specifically remember asking him to attempt to repair my relationship with my mom. I can’t recall that.” Though when asked for a reason why his mother disowned him on September 9, 2000, Tom replied, “I believe that Ron influenced her. I think, he— that’s what I believe in my heart.” Tom went on to testify, “I believe Ron wanted the farmland in the worst way, and he would do whatever it took to acquire that farmland and any other property that mom owned free and clear without paying a dime for it.”

[¶ 17.] The circuit court found that Mary was legally competent when she signed the will and deeds and that the documents were not the result of undue influence. The court also found, however, that Mary became incompetent on or about July 1, 2003. Having initially ordered the appointment of Ron as personal representative on December 16, 2005, the circuit court, following the trial, ordered that Ron be removed from that capacity in favor of a court-appointed special administrator tasked with determining whether any gifts or other transactions made by Mary after July 1, 2003 should be invalidated.

[¶ 18.] Judy and Tom raise two issues on appeal:

1. Whether the circuit court erred in refusing to invalidate the will and real property deeds based on Mary’s alleged incompetence and lack of testamentary capacity or on Ron’s alleged undue influence.

2. Whether Ron breached a fiduciary duty.

STANDARD OF REVIEW

We review a trial court’s findings as to testamentary capacity under the clearly erroneous standard. Likewise, the issue of whether undue influence exists is a question of fact for the trial court to determine.... We will not set aside a trial court’s findings of fact unless they are clearly erroneous. A trial court’s finding is clearly erroneous if, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been made[.] All conflicts in the evidence must be resolved in favor of the trial court’s determinations. The credibility of the witnesses, the weight to be accorded their testimony, and the weight of the evidence must be determined by the [circuit] court and we give due regard to the [circuit] court’s opportunity to observe the witnesses and the evidence. We review any documentary or deposition evidence under a de novo standard of review.

In re Estate of Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490-91 (internal citations and quotation marks omitted). “On review the successful party is entitled to the benefit of his version of the evidence and of all favorable inferences fairly deducible therefrom.” Matter of Podgursky’s Estate, 271 N.W.2d 52, 56 (S.D.1978) (quoting In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455, 458 (1970) (citing In re Blake’s Estate, 81 S.D. 391, 136 N.W.2d 242 (1965))).

ANALYSIS AND DECISION

[¶ 19.] 1. Whether the circuit court erred in refusing to invalidate the will and real property deeds based on Mary’s alleged incompetence and lack of testamentary capacity or on Ron’s alleged undue influence.

Competency

[¶ 20.] Our statute, setting out the basic requirements to make a will mandates that the testator be of sound mind. SDCL 29A-2-501. Testamentary capacity and competence evincing the soundness of mind required to make a will are demonstrated when without prompting, one is able to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of said property. Matter of Estate of Linnell, 388 N.W.2d 881, 883 (S.D.1986) (quoting Podgursky, 271 N.W.2d at 55). Testamentary capacity and competence in this regard does not require that one have the intellectual vigor of youth or perfect health. Id. (quoting Petterson v. Imbsen, 46 S.D. 540, 194 N.W. 842, 844 (1923)). Mere physical weakness is not determinative of soundness of mind. Id. (citing In re Estate of Anders, 88 S.D. 631, 226 N.W.2d 170, 173 (1975)). Moreover, it is not necessary that a person desiring to make a will have the capacity to make contracts and do business. Id. (quoting Petterson, 46 S.D. 540, 194 N.W. at 844). One may lack competency, such that in the view of medical science he is not of sound mind and memory, yet still retain the requisite competency to execute a will. Dokken, 2000 SD 9, ¶ 14, 604 N.W.2d at 491 ¶ 14 (citing Podgursky, 271 N.W.2d at 57 (citing Keely v. Moore, 196 U.S. 38, 25 S.Ct. 169, 49 L.E. 376 (1904))). “Testamentary capacity is not determined by any single moment in time, but must be considered as to the condition of the testator’s mind a reasonable length of time before and after the will is executed.” Id. ¶ 14 (quoting Matter of Estate of Long, 1998 SD 15, ¶ 23, 575 N.W.2d 254, 258 (citing In re Guardianship and Conservatorship of Canning, 1997 SD 81, ¶ 11, 565 N.W.2d 794, 796 (citing In re Estate of Nelson, 330 N.W.2d 151, 155 (S.D.1983)))).

[¶ 21.] In this case, during 2004 there was substantial testimonial and documentary evidence that Mary suffered a steady decline in her mental and physical faculties. Deputy Smith had been dispatched repeatedly to Hill City to check on Mary after her reports that people were in her basement or drilling beneath her basement. At other times, she had reported that a man and woman were coming into her house through a vent behind her television set. On at least one occasion Mary reported that someone was having a baby under her deck. On still another occasion, when Ron was staying with his mother, Mary called the sheriffs department to report that he was in the basement doing drugs. However, when Deputy Smith arrived at Mary’s, he found no sign of any drugs and that Ron was merely in the basement sleeping. Other than a call on April 17, 2003, in which Mary with no apparent justification alleged that a longtime friend and home nurse had stolen what Mary believed to have been a $350,000.00 sweepstakes ticket, all of Mary’s seemingly delusional reports to law enforcement occurred in 2004. In the opinion of Deputy Smith, by late 2004, Mary was “getting to the point” where she should not have been living alone.

[¶ 22.] The Pines also testified to Mary’s deteriorating mental faculties. Gloria indicated that while the pace of the deterioration was gradual following the death of Tom, Sr., it progressed more significantly following a fire in the Black Hills in August 2002 that forced Mary to evacuate her home. Joel testified that he had also come to Mary’s in response to her reports of strange people in her basement. However, he indicated that these episodes did not begin until 2004. In general, Joel stated that in the year prior to Mary’s death in August 2005, her mental condition had become terrible.

[¶23.] An assistant vice president at First Western Bank, Bruce Pelton (Pel-ton), described Mary as being of questionable lucidity. He also stated that she would call the bank to ask employees to deliver things like groceries. However, he did not start working at the bank until February 2004. Based on conversations with bank employees that predated his tenure, he believed that Mary had been behaving in this way for “several months” prior to the date that he started work at First Western.

[¶24.] While these accounts support the contention of Judy and Tom that their mother was mentally incompetent, other evidence was supportive of the circuit court’s determination that Mary was legally competent at the time she signed the deeds and her last will. For this analysis we treat the deeds as testamentary in nature since the record indicates that Mary executed them with a mind toward disposition of the real property following her death.

[¶ 25.] On September 14, 2000, just prior to the September 19, 2000 farm deed and the September 26, 2000 will, Unke conducted a telephone call with Mary for the purpose of determining to his satisfaction that she was competent to change title to the farm ground in a way that would determine disposition upon death and to sign a new will. Unke recorded the call and a transcript was made. The circuit court made a specific finding in regard to the recording of this conversation:

... This taped phone conversation demonstrates that [Mary] was oriented to time and place when the conversation occurred. She spoke in a clear voice which was completely comprehensible. It was not the voice of an old, frail or decrepit woman.

(Emphasis added).

[¶ 26.] We conclude that the circuit court’s assessment of Mary during the conversation is accurate. Unke asked Mary about the farm ground, other real estate and bank accounts. Mary stated that the farm ground consisted of four quarters. She went on to describe how the quarters were located in relation to each other and mentioned the names of townships in which the quarters were situated. She also identified the Hill City and Bridgewater City properties including addresses and legal descriptions. When asked about securities and bank accounts, Mary stated that she owned no stocks or bonds, but that she had certificates of deposit at First National Bank in Freeman, South Dakota and that she received her social security at First Western Bank in Hill City. When asked about her children, Mary identified all four by name and gave birthdates and some details of birth. She also identified a son Michael, who died in childbirth, and stated the date and specifics about his death.

[¶ 27.] During his discussion with Mary about the disposition of her estate and how creating a joint tenancy for the farm ground would cause that property to pass directly to Ron upon her death, the following exchange transpired:

Unke: OK. Uh ... do you understand that upon your death Ron becomes owner of the property?
Mary: Alright. That’s fíne.
Unke: Is that what you want?
Mary: Yes.
Unke: OK ... and I know your will treats the three children equally, why do you want to give Ron the farm?
Mary: Because he is the only one that wants to farm and all they want is the money out of it ... the other ones ... that’s totally.
Unke: OK. You understand on your death that Ron will be the sole owner of that property?
Mary: That’s correct.
Unke: And is that the way you want it?
Mary: That’s the way I have to have it and that’s the way I want it. Yes sir.

[¶ 28.] Besides Mary’s own references to her property, persons interested therein and the disposition thereof, as recorded by Unke, the testimony of others at trial further substantiated Mary’s soundness of mind with respect to her property throughout the time relevant to the new will and the deeds. Gloria Pine testified that during the time frame that the new will and farm deed were executed, Mary talked regularly about the McCook County farm ground and the Bridgewater City property. She further indicated that Mary knew how much farm ground she owned, and that she was sure that Mary was cognizant of all of her children. Judy also testified that in that time frame Mary was oriented to time and place knew of the property that she owned.

[¶ 29.] Holzwarth testified that he handled Mary’s business at First Western Bank until turning it over to Pelton in February 2004. Holzwarth indicated that during the period in which he handled her accounts, Mary would call “semi-frequently” to make sure that she was getting competitive rates on her certificates of deposit. He also stated that “she was pretty diligent” and that “she had a pretty good handle or [knew] pretty close to the exact balances in the account[s] at the bank and how many CDs she had.” Moreover, he indicated that she knew where her farm ground was, who was farming it and that she was cognizant of her farm income.

[¶ 30.] While there was evidentiary support to conclude that Mary’s mental faculties had declined significantly by 2004, Joel Pine’s testimony indicated that Mary “kept a pretty good handle on her property” through even mid 2004. In addition to real property, Mary also owned significant items of personal property, in particular an F-150 Ford pickup and a motor home. Joel stated that the F-150 was her “pride and joy” and that she always made sure that it was garaged. Gloria Pine testified that Mary would mention when she had bought batteries for her motor home and that she wanted to keep it in good shape. Tom testified that when he was on speaking terms with his mother he had suggested that she sell the motor home since Tom, Sr. was no longer living and that she would no longer be using it. Tom stated that in response,

She became instantly agitated. That was something that she had worked very hard on to acquire and that was something she would own to the day she died. Nothing that she ever owned was going to be sold or done anything with. She was going to own it.

[¶ 31.] That Mary was competent and of sound mind during the time at issue could also be reasonably inferred from documentary and testimonial evidence pertaining to the signing ceremonies for the various documents. Her cognizance of the requirements for executing a will is evident from rough notes in her own handwriting entered on August 21, 2000 in a notebook that was received into the record as Exhibit 54. The following entry was made:

(my Will) start to my final will. I have to have 2 people sign (my) Witnessing of my person to help me and a notary public person to be there when I sign the papers for my Helping Hand namely Ronald Henry Pringle. All is completed and I am so glad to have (Some) of the finalizing of the business.

(Parentheses original, emphasis added).

[¶ 32.] On the same day she also made the following entry: “The (Notary Public) whom will witness my Signatures will be (Neil Holzwarth) at the First Western Bank — Hill City So. Dak and 2 (fine) witnesses, our Joel and Gloria Pine.” (Parentheses original). The following entry was the last made on August 21, 2000:

I need a Notary Public person Neil Holzwarth from HC Bnk and 2 witnesses to verify My Signature and date. Legal Info on Business as Needed. I read (all) My Info, and let the chips fall where they may. It seems =

(First emphasis original, parenthesis original, second emphasis added).

[¶ 33.] Holzwarth testified that when Mary wanted him to notarize a document, she would call and make an appointment with him to come to her house. The Pines also testified that Mary made arrangements with them in advance to witness the POA and her last will. Both Holzwarth and the Pines indicated that Mary would have the documents ready for signing and pens and pencils available when they arrived for a signing ceremony. Holzwarth stated that Mary never wanted to take up any more of his time than necessary. Holzwarth testified that Mary would announce that he was there to notarize a deed or that he and the Pines, respectively, were there to notarize and witness her last will and testament. Moreover, he had no question that she knew what the will and the deeds were for.

[¶ 34.] Holzwarth indicated that at the times he notarized documents for Mary, she was oriented to time and place and was cognizant of the seasons. He also indicated that there was nothing in her behavior or speech that would have caused him to question her competency. Likewise, Joel Pine indicated that he and Gloria were not aware of any problems with Mary in or around the time of the signing ceremonies. Holzwarth had no question that Mary was competent to sign the documents stating:

In my capacity as vice-presidentdoan officer and branch officer, I have a fair amount of contact with people. All of her thought processes and actions appeared to be in a capacity that I had no reason to doubt her capacity of signing [these documents ].

(Emphasis added).

[¶ 35.] Finally, we contrast the facts of this case with those Judy and Tom cite in support of their position — Dokken and Podgursky. In the prior cases, the testators had been deemed incompetent for Department of Veteran’s Affairs (VA) purposes, meaning they lacked the ability to handle their own affairs, including their VA disbursements. Dokken, 2000 SD 9, ¶ 21, 604 N.W.2d at 493; Podgursky, 271 N.W.2d at 55. The testators had been institutionalized or had lived in a supervised care environment for years. Dokken, 2000 SD 9, ¶ 4, 604 N.W.2d at 489; Podgursky, 271 N.W.2d at 53-54. Despite these facts, this Court affirmed the decisions below that the testators possessed testamentary capacity. Dokken, 2000 SD 9, ¶ 25, 604 N.W.2d at 494; Podgursky, 271 N.W.2d at 58.

[¶ 36.] Although under the POA, Ron had the authority to administer Mary’s affairs, evidence at trial suggested that Mary for the most part handled her own affairs into 2004. Holzwarth testified that Mary regularly checked on rates being paid on certificates of deposit, made her own arrangements to roll-over maturing certificates into new ones and checked to see if promotional rates were available at those times. Pelton testified that she had check writing ability on her account during 2004. In addition, Mary lived in her own home until 2005.

[¶ 37.] While there is no way to know with certainty when Mary became incompetent, the record indicates that at some point she in fact did. However, our review of the record reveals that there is eviden-tiary support for finding that Mary was of sound mind for purposes of testamentary capacity throughout the time during which she signed her last will and the deeds. Therefore, we conclude that the circuit court was not clearly erroneous in finding that Mary was legally competent at the time she signed her last will and the deeds and did not become incompetent until on or about July 1, 2003.

Undue Influence

a. The proponent’s burden of going forward with the evidence when a confidential relationship exists.

[¶ 38.] Supported by the fact that Ron was Mary’s attorney-in-fact by virtue of the August 23, 2000 POA, the circuit court found that Ron had a confidential relationship with his mother. The court thereby concluded that a presumption existed that Ron exerted undue influence on Mary when she signed her last will and the deeds, which resulted in her real property-passing to him to the exclusion of Judy and Tom. The court found that Ron overcame the presumption and that Judy and Tom thereafter failed to prove Ron exerted undue influence.

[¶ 39.] Judy and Tom argue that because Ron had a confidential relationship with Mary, the ultimate burden of proof in regard to undue influence was for Ron to show that it did not occur. Judy and Tom contend that the circuit court erred by shifting the burden to them to show that undue influence occurred after finding that Ron met the presumption. In the alternative, they argue that they met the burden. We disagree in both respects.

A presumption of undue influence arises “when there is a confidential relationship between the testator and a beneficiary who actively participates in preparation and execution of the will and unduly profits therefrom.” When this presumption arises, the burden shifts to the beneficiary to show he took no unfair advantage of the decedent. However, the ultimate burden remains on the contestant to prove the elements of undue inñuence by a preponderance of the evidence.

Dokken, 2000 SD 9, ¶28, 604 N.W.2d at 495 (internal citations omitted) (emphasis added).

[¶ 40.] We refer to the presumption that arises in a beneficiary holding a confidential relationship with the testator as the burden of going forward with the evidence. Dokken, 2000 SD 9, ¶28, 604 N.W.2d at 495-96; Matter of Estate of Unke, 1998 SD 94, ¶ 13, 583 N.W.2d 145, 148 (citing In re Estate of Metz, 78 S.D. 212, 100 N.W.2d 393, 398 (1960)); Podgursky, 271 N.W.2d at 58 (quoting Anders, 88 S.D. 631, 226 N.W.2d at 174); Davies v. Toms, 75 S.D. 273, 63 N.W.2d 406, 410 (1954) (observing that “[w]hile ... the ‘burden of proof never shifts from the one who undertakes to set aside a deed on the ground of undue influence,” there is a burden known as “the ‘burden of going forward with the evidence’ ” “that does transfer over to the other side when evidence offered shows a relationship of trust and confidence”) (citations omitted) (emphasis added); McKiver v. Theo. Hamm Brewing Co., 67 S.D. 613, 297 N.W. 445, 447 (1941). In Podgursky, we reiterated that it is a mistake to conclude that this burden equates with the ultimate burden of proof on the issue of undue influence. 271 N.W.2d at 59 (quoting Anders, 88 S.D. 631, 226 N.W.2d at 174). Rather, the presumption known as “the burden of going forward with the evidence” means only “the burden of going forward with a reasonable explanation of the (claimed) unnatural character of the [document].” Id. (quoting Anders, 88 S.D. 631, 226 N.W.2d at 174) (parenthesis original). In McKiver, this Court addressed the distinction between burden of proof and presumption:

[A] presumption ... disappears when evidence is introduced from which facts may be found. As stated by this [C]ourt in the case of Peters v. Lohr, 24 S.D. 605,124 N.W. 853, 855 (1910):
“A presumption is not evidence of anything, and only relates to a rule of law as to which party shall first go forward and produce evidence sustaining a matter in issue. A presumption will serve as and in the place of evidence in favor of one party or the other until prima facie evidence has been adduced by the opposite party; but the presumption should never be placed in the scale to be weighed as evidence. The presumption, when the opposite party has produced prima fa-cie evidence, has spent its force and served its purpose, and the party then, in whose favor the presumption operated, must meet his opponent’s prima facie evidence with evidence, and not presumptions.”
This burden of going forward with the evidence differs from the burden of proof. A presumption casts upon the person against whom it is applied the duty to go forward with the evidence on the point to which the presumption relates. The burden of proof, meaning the duty of establishing the truth of a claim by such quantum of proof as the law requires, rests upon the party having the affirmative of an issue. The latter never shifts during the course of a trial, while the burden of going forward with the evidence may shift.

67 S.D. 613, 297 N.W. at 447.

[¶ 41.] To rebut the presumption that he was using his confidential relationship with Mary to further his own interest to the detriment of Judy and Tom, Ron contends that the numerous phone calls with and visits to his mother were not designed to exert undue influence on her, but rather were expressions of love and caring for his mother. It is undisputed that after September 2000, neither Judy nor Tom had or attempted any communication with their mother for over four years. Although they offered no evidence to the circuit court that Ron took any action to keep them from contacting their mother, they now claim that some vague on-going effort by Ron to do just that was responsible for the fact that neither of them had any contact with her in person, by phone or by letter until 2004. This claim rings hollow in view of the fact that Ron, who lived in Bridgewater over 300 miles from Hill City, lived further away from his mother than either Judy (Pierre) or Tom (Chamberlain) and had no way to intercept phone calls or the mails.

[¶ 42.] There is also evidence in the record that it was very important to Mary that the McCook County farm ground remain in the Pringle family rather than being sold off for money. Again from the record, it is apparent that Mary was abundantly aware of the fact that Ron was farming the ground and that he would not sell it because he wanted to continue farming. Likewise, it is apparent that Mary intended for the Hill City home to serve as a memorial to Tom, Sr. and eventually her. A head stone was placed on the property. It is reasonable to infer that Mary believed that Ron would also retain that property so as to honor her wishes.

[¶ 43.] Moreover, Ron rebuts the presumption of undue influence by asserting that in Unke, Mary had independent advice when contemplating her last will and the deeds. See Black v. Gardner, 320 N.W.2d 153, 159 (S.D.1982) (reiterating that the presumption of undue influence can be rebutted “by showing that the one allegedly overpersuaded had independent advice that was neither incompetent nor perfunctory”) (citing Davies, 75 S.D. 273, 63 N.W.2d 406). Judy and Tom dismiss this assertion citing that Ron had retained Unke to represent him in 1998 during his divorce; in 1999 during a dispute with Chuck over the placement of Tom, Sr.’s remains in the Bridgewater Cemetery; in 2002 when he sought a protection order against his ex-wife; and in 2005 for property issues. Notwithstanding the fact that the 2005 representation occurred after all of the documents in question were drafted and executed, this argument fails because these were entirely separate representations. What is determinative is the testimony of Unke in regard to his representation of Mary. Unke indicated that in regard to his consultation with his long-time client about her last will and the deeds, Mary is the one that he considered to be his client and he consequently considered that his ethical duties ran to her. Thus, we conclude that there was eviden-tiary support for the circuit court’s finding that Ron rebutted the presumption that he used his confidential relationship with Mary to exert undue Influence upon her. Therefore, we conclude that there is no basis upon which to determine that this finding was clearly erroneous.

b. The contestants’ burden of proving the elements of undue influence.

[¶ 44.] Having established that Ron rebutted the presumption of undue influence, it then remains for Judy and Tom to prove that it occurred.

It is well settled that it is [the burden of the contestant of a testamentary document] to prove each of the four elements of undue influence by the greater weight of the evidence. These elements include:
(1) decedent’s susceptibility to undue influence;
(2) opportunity to exert such influence and effect the wrongful purpose;
(3) a disposition to do so for an improper purpose; and
(4) a result clearly showing the effects of undue influence.

In re Estate of Schnell, 2004 SD 80, ¶ 21, 683 N.W.2d 415, 421 (citing In re Estate of Holan, 2001 SD 6, ¶ 16, 621 N.W.2d 588, 591-92). “For influence to be undue it must be of such a character as to destroy the free agency of the testatfor] and substitute the will of another for that of the testat[or].” Id. (alteration original) (quoting Matter of Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995)).

[¶ 45.] The circuit court found that Mary was “not at all susceptible to undue influence.” Mary was known to have been a frequent player of sweepstakes. An occasion occurred in which Mary contacted the Pennington County Sheriffs Department and First Western Bank to inquire about a sweepstakes-related solicitation that she had received. Judy and Tom argue that the fact that Mary frequently played the sweepstakes and that she had apparently been targeted by hucksters is evidence of her susceptibility to undue influence.

[¶ 46.] The sweepstakes-related deception that Mary reported to the Sheriffs Department was perpetrated by a person that identified himself as “Sir Michael Kensington.” “Sir Kensington” attempted to scam Mary out of $6,500.00 by telling her that if she would send him a cashier’s check in said amount, she would receive her sweepstakes winnings totaling $392,460.00. Instead, Mary called First Western and spoke with the branch president about the incident. The bank president advised her against paying any money and told her to report the incident to the sheriffs department. Mary did so. Thereafter, “Sir Kensington” again contacted Mary, at which time she told him that any further inquires of her should be directed to her banker. “Sir Kensington” then crudely swore at Mary and hung up the phone ending the matter. Contrary to concluding that this incident was indicative of Mary’s susceptibility to undue influence, the circuit court made an oral finding that the incident evinced her ability to recognize someone who was attempting to take advantage of her.

[¶ 47.] Joel Pine testified that he felt Mary was not able to properly care for herself for sometime before she was actually removed from the home in 2005. He stated that he tried to talk to her about getting some help, but that she was “bullheaded” and “stern” about staying in her house and that she rejected his suggestion. He went on to testify that her attitude was not limited to matters concerning her living arrangements, but rather that it applied to “everything.” He indicated that she was “strong-willed” and “very determined.” He also was of the impression that her children would “listen to her when she spoke.”

[¶ 48.] Gloria Pine indicated that Mary was “closed-mouthed” about her finances and that Gloria also considered Mary to be “strong-willed.” Gloria too thought the term bullheaded fairly described Mary and that her children would probably do whatever she wanted them to do.

[¶ 49.] Interestingly, the contestants in this case expressed similar opinions during their testimony. Tom, characterized her as capable of being “a very controlling person.” Judy even went so far as to indicate that Mary was “not too susceptible to persuasion.”

[¶ 50.] We conclude that the forgoing accounts constitute evidentiary support for the circuit court’s finding that Mary was “not at all susceptible to undue influence.” Therefore the circuit court’s finding is not clearly erroneous. Since Judy and Tom are unable to prove the first element of undue influence, they are unable to meet their burden of proof and we need not address the remaining elements requisite to that showing.

[¶ 51.] 2. Whether Ron breached a fiduciary duty.

[¶ 52.] Since we concluded by our analysis of Issue 1 there were explanations apart from any action that Ron took within the context of his confidential relationship that could account for why Mary executed a new will and the deeds; that she had independent advice in this regard; and that in any case no undue influence could be shown, we hereby conclude that Ron did not breach a fiduciary duty prior to July 1, 2003 — the date which the circuit court found Mary to be legally incompetent. However, because the circuit court appointed a special administrator to review Mary’s post-July 1, 2003 gifts and transactions for validity, a question remains as to whether Ron breached a fiduciary duty from that point forward. Since at the time of this appeal no report had yet been submitted by the special administrator we decline to consider this issue today. See Boever v. South Dakota Bd. of Accountancy, 526 N.W.2d 747, 750 (S.D.1995) (opining that appellate review of an issue that has yet to become ripe amounts to issuing an advisory opinion and that even though the Court may have jurisdiction to issue such an opinion, it should refrain from doing so “if the issue is so premature that the [C]ourt would have to speculate as to the presence of a real injury”) (citation omitted).

[¶ 53.] Affirmed.

[¶ 54.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . Tom, Sr.’s grandfather homesteaded the "Pringle quarter.”

      . Mary and Tom, Sr. essentially disinherited Chuck over a dispute about his management of the farm.

      . Judy testified that the last time prior to the September 9 call that she talked to Mary had been during a telephone call on the Saturday after July 4, 2000. Judy characterized that call as "very cold” and considered it the point at which her relationship with her mother took a "turn for the worse.”

      . When questioned at trial whether he had carbon copied anyone else on the deed or the will, Unke replied that he had not because, “I wasn't asked to.”

      . While Judy and Tom couch this issue in terms of error with respect only to the deeds and an assertion of undue influence, their argument on appeal clearly encompasses an objection to the will and assertions that Mary was incompetent and lacked testamentary capacity at the time these documents were executed.

      . In addition to the transcript, the tape from which it was made was included in the appellate record for our review.

      . Holzwarth testified that Mary used the precise words "last will and testament” when announcing that document.

      . While there is no evidence that Ron participated in the preparation and execution of the document, we decide this case on other grounds.


text:
    2008 SD 40
    Chad CARPENTER, Plaintiff and Appellant, v. RAPID CITY RED DOGS, LLC, Defendant and The National Indoor Football League, Defendant and Appellee.
    No. 24584.
    Supreme Court of South Dakota.
    Argued March 27, 2008.
    Decided June 4, 2008.

      Michael J. Simpson of Julius & Simpson, LLP, Rapid City, SD, for plaintiff and appellant.
    Dennis W. Finch of Finch Bettmann Maks & Hogue, PC, Rapid City, SD, for defendant and appellee NIFL.
   MEIERHENRY, Justice.

[¶ 1.] Chad Carpenter signed a contract to play indoor football for the Rapid City Red Dogs, a member of the National Indoor Football League (League). While playing for the Red Dogs in a regular season league game, Carpenter suffered a wedge compression fracture in his neck. The injury prevented Carpenter from working four weeks and cost him $5,461.95 in medical bills.

[¶ 2.] At the time of Carpenter’s injury, neither the Red Dogs nor the League was insured under the workers’ compensation laws of South Dakota. Carpenter sued both the Red Dogs and the League for workers’ compensation benefits under SDCL 62-3-11. The circuit court entered a default judgment against the Red Dogs, but granted the League’s motion for summary judgment exempting it from liability for Carpenter’s injuries.

[¶ 3.] Carpenter appeals the circuit court’s grant of summary judgment to the League. The issue on appeal is whether the League is a joint employer with the Red Dogs and therefore equally responsible for workers’ compensation coverage for Carpenter.

DECISION

[¶ 4.] As part of the summary judgment proceedings, the parties submitted a joint statement of undisputed facts. Since there was no issue of material fact, the circuit court determined as a matter of law that only the Red Dogs, not the League, was obligated to provide workers’ compensation coverage. On appeal, we review the circuit court’s application of the law de novo. Thornton v. City of Rapid City, 2005 SD 15, ¶4, 692 N.W.2d 525, 528-29 (citations omitted).

[¶ 5.] It is uncontested that Carpenter was employed by the Red Dogs and that the Red Dogs had no workers’ compensation coverage for its employees. Carpenter claims that he was also an employee of the League. He contends that the Red Dogs and the League were joint employers. The circuit court rejected this contention. It relied upon a provision in the employment contract that expressly designated that the Red Dogs would be responsible for workers’ compensation coverage. Carpenter claims the circuit court erroneously relied on the contract provision, because SDCL 62-3-18 unequivocally prohibits employers from contracting away their statutory obligation to provide workers’ compensation insurance.

[¶ 6.] We agree that the law does not allow a “contract or agreement, express or implied, ... in any manner [to] operate to relieve any employer in whole or in part of any obligation created by [the workers’ compensation statutes].” SDCL 62-3-18. Nevertheless, the circuit court did not err in granting the League summary judgment. A de novo review of the entire contract along with the undisputed material facts supports the Leagues’ claim that Carpenter was not its employee.

[¶ 7.] In order for a person to be entitled to workers’ compensation benefits, an employer-employee relationship must exist. Woodcock v. City of Lake Preston, 2005 SD 95, ¶ 10, 704 N.W.2d 32, 34; Egemo v. Flores, 470 N.W.2d 817 (S.D. 1991). “[Although the existence of an employer/employee relationship is normally a question of fact, where clear, the relationship may be determined by the court.” Goodman v. Sioux Steel Co., 475 N.W.2d 563, 565 (S.D.1991). Generally, we construe workers’ compensation statutes liberally to find coverage. Id.

[¶ 8.] South Dakota law defines an employer as: “[A]ny individual, firm, association, limited liability company, or corporation ... using the service of another for pay.” SDCL 62-1-2 (emphasis added). An employee is defined as: “[E]very person, including a minor, in the services of another under any contract of employment, express or implied.... ” SDCL 62-1-3 (emphasis added). Although the statute requires service for pay, actual monetary payment is not required. Nevertheless, the employer must supply some form of “valuable consideration” to the employee for his/her services. See Schumacher v. Schumacher, 67 S.D. 46, 288 N.W. 796, 798 (1939) (stating that “‘Pay’ here means compensation, and whether respondent received his compensation for services in money or other valuable consideration is immaterial”). See also Woodcock, 2005 SD 95, ¶ 13, 704 N.W.2d at 35 (noting that gratuitous employees are not covered under the workers’ compensation statutes).

[¶ 9.] The contract that Carpenter signed unequivocally provided that it was between Carpenter and the Red Dogs:

THIS CONTRACT is between Chad Carpender (sic), hereafter “Player” and The Rapid City Red Dogs L.L.C., hereinafter “Club” as a member of the National Indoor Football League (“League”). In consideration of the promises made by each to the other, [Carpenter] and [the Red Dogs] agree as follows: ... [the Red Dogs] employ [Carpenter] as a skilled football player. [Carpenter] accepts such employment. [Carpenter] agrees to provide his best effort and loyalty to [the Red Dogs].... If the state in which [the Red Dogs] operates requires state Workman’s Compensation Insurance, [the Red Dogs] will provide the coverage for [Carpenter].

Another contract provision specified that the Red Dogs would pay Carpenter “weekly for each League game the sum of weekly expense allowance and $200.00 per game while on active roster for the team.” Clearly, compensation for regular season games derived exclusively from the Red Dogs.

[¶ 10.] Additionally, only the Red Dogs could terminate Carpenter’s employment without cause. The contract provided that:

TERMINATION. The [Red Dogs] may terminate this contract without cause. If in the sole judgment of the [Red Dogs], [Carpenter’s] service will not be necessary for [the Red Dogs] to field a professional football squad [the Red Dogs] may terminate [Carpenter’s] contract. [Carpenter] understands that he is competing with other players for a position on the roster of said [Red Dogs]. At any time and in the sole judgment of the [Red Dogs], said [Red Dogs] may terminate this contract if [Red Dogs] determines that [Carpenter’s] skill or performance has been unsatisfactory as compared with that of other players competing for roster positions, in which event all earned but unpaid salary [Carpenter] has earned or is otherwise entitled to shall be due and payable....

[¶ 11.] In contrast, the contract does not specifically provide for Carpenter to receive any compensation from the League for his services. Although Carpenter could be required to make publicity and promotional appearance “on behalf of official League or [the Red Dogs] corporate sponsors or suppliers, or the League and [the Red Dogs],” he was to “receive the appearance fee from [the] sponsor.” The contract also called for Carpenter “to grant and assign” his name and/or likeness to the “League, [the Red Dogs] and any League-designated entity” for “advertisement, promotion or sale of trading cards or any other commercial product or entity.” He was required to waive any claim to revenues except he could “receive compensation for playing cards, still photographs, motion pictures and videos.” Even if we were to assume that the League would have compensated Carpenter — either directly or through the Red Dogs — had he been chosen to participate in the all-star games, all of his compensation for regular season games unquestionably came from the Red Dogs. Since Carpenter was injured during a regular season game, the Red Dogs, not the League, was paying Carpenter for his service. Thus, the League does not meet the definition of employer under SDCL 62-1-2 because the League was not “using the service of [Carpenter] for pay.”

[¶ 12.] Carpenter cites Gulbrandson v. Town of Midland as authority for his joint employment argument. 72 S.D. 461, 36 N.W.2d 655 (1949). Contrary to his position, the right to seek payment was central to finding joint employment in Gulbrand-son. Id. at 657 (requiring an employment contract agreeing to service for pay). In Gulbrandson, Charles Schofield, the acting town marshal, also served in the capacity as deputy sheriff for the county. Schofield sought Gulbrandson’s help in apprehending robbers. While under Schofield’s direction, the robbers shot and killed Gul-brandson. Gulbrandson’s family sued both the town and the county for benefits related to his death. We determined that Gul-brandson was under the direction of both the town and the county and could have been compensated for services from either entity. Id. at 658.

[¶ 13.] Carpenter contends that because of the League’s control over the game, the Red Dogs and the players; the League had an express and/or implied contract of employment with Carpenter. Carpenter relies on certain league regulations and contract provisions in support of his express and implied contract argument.

[¶ 14.] Even recognizing that the League had the authority to regulate and control certain aspects of Carpenter’s services in regular season games and that it benefited from Carpenter’s performance, Carpenter had no right to seek payment from the League and the League had no obligation to pay for or to provide other valuable consideration for Carpenter’s services in regular season games. Consequently, the League was not a joint employer of Carpenter for purposes of workers’ compensation coverage.

[¶ 15.] Affirmed.

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

      . Although the League had the authority to terminate Carpenter's contract for player misconduct, this disciplinary authority demonstrates the League's role as a licensing/regulatory entity rather than Carpenter's employer.

      . The contract provision entitled EMPLOYMENT AND SERVICES includes the following:
      If invited, [Carpenter] will practice for and play in any and all all-star football games sponsored by the League. [Carpenter] will receive compensation if playing in All-Star game.
      The terms of the contract do not specify whether the compensation for the all-star games is paid to Carpenter by the Red Dogs or the League.

      . Carpenter cites to the following league regulations and contract provisions: The contract was printed on League letterhead, with three lines designated for signatures of the player, team representative and the CEO of the League (only the team representative and ■ Carpenter actually signed the contract); the League was the sole arbiter of disputes between the Red Dogs and Carpenter; the League mandated certain apparel (but did not supply the apparel); incentive based contracts between the player and club required the League’s approval; the League set the rules and regulations for league games; both the League and the Red Dogs were empowered to release players from their contract in order to sign with another professional football league; the League was permitted to use the player’s name and likeness and pictures for publicity and promotion of the League, the Red Dogs or any of its other member clubs; both the League and the Red Dogs were empowered to direct the player to make personal appearances on behalf of the League or the Red Dogs corporate sponsors or suppliers; the League was permitted to use the players name and/or likeness in connection with advertising, promotion or sale of trading cards or any other commercial product or entity; and the League could fine, discipline or terminate player’s contract for misconduct such as betting on league games, drug use, etc.