text:
    2003 ND 96
    Jenese A. PETERS-RIEMERS, Plaintiff and Appellee, v. Roland C. RIEMERS, Defendant and Appellant.
    No. 20020225.
    Supreme Court of North Dakota.
    June 17, 2003.

      Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, for plaintiff and appellee.

      Jonathan T. Garaas, Garaas Law Firm, DeMores Office Park, Fargo, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Roland C. Riemers appealed from an order holding him in contempt, and a resulting warrant of attachment and money judgment, for failing to comply with the property distribution provisions of a divorce decree. Because the record does not show that Riemers was informed of his right to counsel when his incarceration became a likely result of the contempt proceedings, we reverse and remand for further proceedings.

I

[¶ 2] Jenese A. Peters-Riemers and Roland C. Riemers were divorced in May 2001 following a troubled two-year marriage. See Peters-Riemers v. Riemers, 2001 ND 62, 624 N.W.2d 83; Flattum-Riemers v. Peters-Riemers, 2001 ND 121, 630 N.W.2d 71. The amended divorce judgment ordered Roland to pay $1,150 per month child support for the couple’s child and $500 per month spousal support to Jenese for five years. As part of the marital property distribution, Roland was awarded all financial accounts in his name and two parcels of real estate. The divorce judgment awarded Jenese all financial accounts in her name and further provided:

12. JENESE’S REAL ESTATE: Effective June 16, 2001, Jenese shall have sole ownership in fee simple absolute, including all right, title, possession and interest therein, free and clear of any claim of right, title or interest by Roland, in and to the following parcels of real estate:
Marital Residence, RR # 1, Box JpS, Buxton, North Dakota: Legally described as “591 by 690 feet tract in the E ½ SE ⅛ Section 13 Township 147 Range 51. 9.36 acre Tract.”
217 Chestnut, Grand Forks, North Dakota: Legally described as “Lot 10, 12 Block 9 Traill’s Addition to the City of Grand Forks.”
309 5th Street N, Grand Forks, North Dakota: Legally described as “Lot 7, Block 12 Original Townsite Grand Forks.”
Prior to June 1, 2001, Roland shall be solely and separately liable upon any and all debt, loan, utility and any other payment or liability relative to the above-referenced parcels of real estate.
In the event that, by no later than June 15, 2001, Roland fully complies with the terms of paragraph # 15 below, however, then Roland shall have sole ownership in fee simple absolute, including all right, title, possession and interest therein, free and clear of any claim of right, title or interest by Jenese, in and to the above-referenced parcels of real estate.

Paragraph 15 of the divorce judgment allowed Roland to pay Jenese a lump sum of $180,000 by June 15, 2001, and maintain sole ownership of the three parcels awarded to Jenese.

[¶ 3] Roland appealed the divorce judgment to this Court and the trial court granted a stay of execution of paragraph 12 of the divorce judgment effective through July 15, 2001 to allow Roland to procure a $175,000 supersedeas bond. Roland failed to obtain a satisfactory superse-deas bond and did not make the $180,000 lump sum payment to Jenese.

[¶ 4] After the stay expired and Roland failed to vacate the marital residence, Je-nese brought eviction proceedings against him. This Court affirmed the order evicting Roland from the residence. See Peters-Riemers v. Riemers, 2002 ND 49, 641 N.W.2d 83. On November 26, 2001, while the appeal from the divorce judgment was pending in the Supreme Court, Jenese filed in this Court a contempt motion against Roland for violating the property distribution provisions of the divorce judgment, requesting:

1. An order requiring Roland to immediately vacate Jenese’s Buxton property;
2. An order requiring Roland to turn over all keys to the properties awarded to Jenese in the Amended Judgment in their divorce action;
3. An order requiring Roland to turn over all security deposit[s] for all tenants of the building located 217 Chestnut and all the tenants of the building at 309 5th St. N.;
4. An order requiring Roland to pay the back taxes on the Grand Forks properties;
5. An order requiring Roland, and Roland’s agents, to cease and desist any interference with Jenese’s operation of her apartment buildings;
6. An order restraining Roland, and Roland’s agents, from trespassing on the premises at 217 Chestnut and 309 5th St. N.
7. Such further relief as the Court deems necessary and just.

On November 28, 2001, we “temporarily REMANDED for the limited purpose of the trial court’s consideration of the Contempt Motion, but the Supreme Court retains jurisdiction for purposes of the appeal.”

[¶ 5] The trial court held a hearing on the contempt motion on December 18, 2001. Roland appeared pro se, as he has in several of these proceedings. Shortly after the hearing began, Jenese’s attorney explained that he wanted a contempt “order that imposes a six month jail period,” stayed until January 1, 2002, to give Roland time to comply with the relief sought. Jenese presented evidence that Roland, in addition to failing to comply with the property distribution provisions of the divorce decree, was also behind in his child and spousal support payments. The trial court issued a contempt order on December 20, 2001, finding Roland in contempt for:

([1]) his failure to relinquish possession of the Buxton farmstead; (2) his various efforts to obstruct and obscure Jenese’s full complement of ownership rights and interests in and to the rental properties; (3) his collection of rental payments owed to Jenese after July 15, 2001; (4) his failure to account for and transfer to Jenese all security deposits for the current tenants in the rental properties; (5) and his failure to pay all liabilities due and owing on the rental properties, including but not limited to the 2000 property taxes.

The trial court ordered that “Roland is hereby sentenced and committed to a period of six (6) months incarceration in the Traill County jail,” but stayed the sentence until another hearing could be held on January 22, 2002, to determine whether Roland had purged the contempt. At that time, the trial court also issued an order to show cause why Roland should not be held in contempt for failure to pay his child support and spousal support obligations imposed by the divorce decree.

[¶ 6] The second hearing was continued until February 19, 2002. Roland again appeared pro se. Both parties presented evidence. Roland testified that he had satisfied some of the conditions imposed by the December 20, 2001 order, but was currently “flat broke” and was expecting to file for bankruptcy.

[¶ 7]' After the second hearing was held, this Court affirmed the divorce judgment in its entirety. See Peters-Riemers v. Riemers, 2002 ND 72, ¶ 31, 644 N.W.2d 197. On May 29, 2002, a hearing was held before a second trial court judge on the contempt motion against Roland for failure to pay spousal and child support. On June 6, 2002, the second trial court judge found Roland was not in contempt of court “because the financial information showed [Roland] did not have the income available to pay this monthly obligation.” The court ordered that Roland’s child and spousal support obligations would continue to accrue at the rate of $1,150 and $500 per month, respectively, but ordered the “enforcement of the monthly child support obligations shall continue in the sum of $500.00 each month, commencing June 1, 2002.”

[¶ 8] On June 27, 2002, the trial court judge who had presided over the December 18, 2001 and February 19, 2002 hearings issued a contempt order. The trial court took judicial notice of the order of the second trial court judge finding Roland not to be in contempt for the unpaid child and spousal support and incorporated it in the opinion. The trial court found that Roland had purged himself of some of the mandated conditions, but continued to be in contempt regarding other conditions. The court ordered:

4. Amount Owed: Roland shall pay to Jenese the sum of $40,144.84, payable by certified or cashier’s check and delivered to either Jenese Peters or her attorney of record, Michael L. Gjesdahl.
5. Money Judgment: The Clerk of Court shall enter a docketable money Judgment against Roland Riemers and in favor of Jenese Peters, in the amount of $40,144.84, comprised of the amounts set forth in paragraphs 2 and 3 above.
6. Incarceration: Roland shall be immediately incarcerated in the Traill County Jail for a period of six months or until he has paid Jenese the sum of $40,144.84, whichever occurs first.
7.Writ Warrant of Attachment: The Traill County Clerk of District Court shall immediately issue a Writ or Warrant of Attachment, requiring the Traill County Sheriffs [Department], the Grand Forks County Sheriffs Department, the Grand Forks Police Department, the Hillsboro Police Department and any other North Dakota law enforcement officer to detain Roland Riemers and deliver him into the custody of the Traill County Sheriff for incarceration in the Traill County jail.

[¶ 9] On July 8, 2002, Roland was incarcerated in the Traill County Jail. Roland obtained counsel and filed a writ of habeas corpus, which was granted by the second trial court judge who had found Roland to not be in contempt for failing to pay child and spousal support. Relying on N.D.C.C. §§ 27-10-01.l(l)(b) and 27-10-01.4(l)(b), the trial court reasoned Roland could not be incarcerated for failure to comply with the property distribution provisions of the divorce decree because execution could be awarded for the collection of the amount due. Jenese did not appeal from this order. Roland was released from jail and, through counsel, took this appeal from the June 27, 2002 contempt order. After the notice of appeal was filed, the second trial court judge vacated his June 6, 2002 order finding Roland to not be in contempt for failing to pay child and spousal support because “[n]either the undersigned nor, apparently, the Traill County State’s Attorney were aware that this matter was” the subject of a pending action.

[¶ 10] In January 2003, a hearing was held on Jenese’s motion to hold Roland in contempt for his failure to pay child support and spousal support. Roland appeared pro se. On February 3, 2003, a third trial court judge found Roland in contempt and authorized entry of a money judgment “requiring Roland to pay to Je-nese the sum of $24,590.34, comprised of $28,465.84 in child and spousal support arrearages and $1,124.50 in attorney fees.” The trial court further ordered:

6. Sentence: By no later than the end of business, March 28, 2003, Roland shall pay the sum of $23,465.84 to the State Disbursement Unit, PO Box 7280, Bismarck, ND 58507-7280. Should he fail to make such payment, upon Je-nese’s request and the Court’s verification with the State Disbursement Unit’s computer system that the payment has not been made, a Writ of Attachment shall issue for Roland’s arrest and confinement. Roland shall then serve thirty (30) days in the Traill County jail. Roland may obtain his unconditional release from such confinement at any time upon his full payment of the $23,465.84.

[¶ 11] On March 26, 2003, Roland filed yet another appeal which is presently pending in this Court. Among the issues raised by Roland in the latest notice of appeal is the trial court’s “failure to advise Roland the court was considering incarceration and to Roland’s right to an attorney when the proceedings could result in up to 6 months in jail, and did result in an order for one month in jail ...” On April 11, 2003, this Court denied Roland’s emergency request for stay pending appeal of this contempt order. On May 9, 2003, the third trial court judge granted a stay of Roland’s 30-day jail sentence pending further order of the court.

II

[¶ 12] Roland raises a number of issues on appeal, but the dispositive issue he raises in this case involves the trial court’s obligation to inform a pro se defendant of the right to counsel in a contempt proceeding in which the defendant faces potential incarceration. Because Roland has been granted a writ of habeas corpus discharging him from incarceration by the second trial court judge and Jenese did not appeal, it is arguable we cannot render effective relief regarding this issue and the appeal is moot.

[¶ 13] Mootness is a threshold issue we decide before reaching the merits of an appeal. Simpson v. Chicago Pneumatic Tool Co., 2003 ND 31, ¶7, 657 N.W.2d 261. An appeal is moot when an appellate court is unable to render effective relief because of the lapse of time or because of the occurrence of an event prior to the appellate court’s determination. Ashley Educ. Ass’n v. Ashley Pub. Sch. Dist., 556 N.W.2d 666, 668 (N.D.1996). Mootness may arise from an event which occurred after the district court’s decision, but before oral argument. Fercho v. Remmick, 2003 ND 85, ¶8, 662 N.W.2d 259.

[¶ 14] Nevertheless, we “will determine an issue that is moot, rather than dismiss the appeal, ‘if the controversy is one of great public interest and involves the authority and power of public officials or if the matter is capable of repetition, yet evading review.’ ” Fercho, 2003 ND 85, ¶ 9, 662 N.W.2d 259 (quoting Sposato v. Sposato, 1997 ND 207, ¶9, 570 N.W.2d 212). We believe the dispositive issue in this case is one of great public interest involving the authority of public officials because it concerns a pro se defendant’s constitutional rights when faced with possible incarceration by a court of law. Moreover, the issue is capable of repetition, yet evading review, because Roland could face incarceration again without benefit of counsel, unless we address the merits. Indeed, this possibility is evidenced by the record in this case. Although Roland has been released from incarceration for violation of the property distribution provisions of the divorce decree, Roland again faces possible incarceration for violating the child and spousal support provisions of the divorce decree, and Roland has again raised the issue of the trial court’s obligation to inform him of the right to counsel in his appeal from that contempt order. Consequently, we will address the merits. See In re Marriage of Stariha, 509 N.E.2d 1117, 1123 (Ind.App.1987) (holding case fell within public interest exception to mootness doctrine even though defendant had served sentence imposed in contempt hearing).

Ill

[¶ 15] Roland argues the contempt proceedings were invalid because Jenese failed to bring her contempt motion in the proper court. According to Roland, the contempt motion should have been filed in the trial court, rather than in this Court, because this Court lacked subject matter jurisdiction over the matter. Roland argues this Court only had appellate jurisdiction and should have dismissed the motion, rather than remand it to the trial court.

[¶ 16] With some exceptions, a trial court loses its jurisdiction when a notice of appeal is filed. Wilson v. Koppy, 2002 ND 179, ¶ 6, 653 N.W.2d 68. It is well settled, however, that “an appeal does not operate to stay proceedings for the enforcement of a judgment; that a judgment may be enforced unless a supersede-as bond is given at or after the time of filing the notice of appeal.” Verry v. Murphy, 163 N.W.2d 721, 725 (N.D.1968). When a court has issued an allegedly erroneous order, the party to whom the order was issued must obey it as long as it remains in force or until it is reversed on appeal, and the failure to obey the order is punishable as a contempt of court. Fargo Women’s Health Org., Inc. v. Larson, 391 N.W.2d 627, 634 n. 8 (N.D.1986). Consequently, the trial court had jurisdiction to entertain Jenese’s contempt motion while the underlying divorce judgment was pending on appeal to this Court. See Dahlen v. Dahlen, 393 N.W.2d 769, 770 (N.D.1986).

[¶ 17] Furthermore, N.D.C.C. § 27-02-05.1(5) allows this Court to “provide to the extent it deems necessary or desirable, rules for ... [t]he transfer of any matter to any proper court when the jurisdiction of any court has been improvidently invoked.” Under N.D.R.App.P. 35(b), if “it becomes apparent to the supreme court that some issue involved in the case has not been tried ... and that it is necessary or desirable to proper disposition of the case on appeal that the issue be determined, the supreme court may remand the case to the trial court for the determination of the issue, without relinquishing jurisdiction of the appeal.” Therefore, this Court had jurisdiction to remand Jenese’s contempt motion to the trial court for disposition. Cf. Harger v. Harger, 2002 ND 76, ¶ 16, 644 N.W.2d 182 (recognizing this Court has concurrent jurisdiction with the trial court to award attorney fees on appeal and remanding to the trial court to award reasonable attorney fees).

[¶ 18] Roland’s argument that the contempt proceedings were fatally defective because the contempt motion was originally filed in this Court is without merit.

IV

[¶ 19] The dispositive issue is whether the trial court committed reversible error by failing to inform Roland of his right to counsel in the contempt proceedings resulting in his incarceration.

[¶ 20] Under the contempt provisions of N.D.C.C. ch. 27-10, a court may impose both remedial and punitive sanctions, which incorporate the traditional characteristics of civil and criminal contempt, respectively. Mid-Dakota Clinic, P.C. v. Kolsrud, 1999 ND 244, ¶20, 603 N.W.2d 475. In Endersbe v. Endersbe, 555 N.W.2d 580, 582 (N.D.1996) (citations omitted), we explained

A remedial sanction is one which “includes a sanction that is conditioned upon performance or nonperformance of an act required by court order.” N.D.C.C. § 27-10-01.1(4). Remedial sanctions can be payment of money, forfeitures, or imprisonment. N.D.C.C. § 27-10-01.4(1). A prison sentence is remedial only if it is conditional and the “contemnors carry ‘ “the keys of their prison in their own pockets.... ” ’ ” Punitive sanctions, however, are unconditional. Thus, a punitive sanction is “a sanction of imprisonment if the sentence is for a definite period of time ...” or a sentence which “is not conditioned upon performance or nonperformance of an act....” N.D.C.C. § 27-10-01.1(3). The most important factor which makes a sanction punitive is its unconditional nature; if the contemnor cannot purge the contempt by performance, the charge is punitive.

When imposing contempt under N.D.C.C. ch. 27-10, a court must first consider whether a remedial or punitive sanction is applicable and then apply the appropriate procedures for imposing the sanction. Kolsrud, at ¶20. Because Roland’s release from incarceration was conditioned upon the performance of various acts which the trial court apparently found he had the current ability to perform, it appears the sanction imposed was remedial.

[¶ 21] In State ex rel. Gullickson v. Gruchalla, 467 N.W.2d 451, 453 (N.D.1991) (footnote omitted), this Court declared “indigent defendants in civil contempt proceedings should be granted counsel at state expense when, if they lose, they will likely be deprived of their physical liberty.” Gruchalla comports with the unanimous view of the United States Courts of Appeal, as well as the view of the overwhelming majority of state courts to consider the question, that due process requires one who may be deprived of liberty through a contempt proceeding to be afforded a reasonable opportunity to obtain counsel to represent him. See Annot., Right to Appointment of Counsel in Contempt Proceedings, 32 A.L.R. 5th 31 (1995), and cases collected therein.

[¶ 22] Courts have also routinely held that this due process right places an obligation on the trial court to inform a defendant of the right to counsel in a contempt proceeding in which the defendant faces potential incarceration, and to inform the defendant that in the event the defendant is found to be indigent, the defendant has a right to appointed counsel. See, e.g., Walker v. McLain, 768 F.2d 1181, 1185 (10th Cir.1985); Ridgway v. Baker, 720 F.2d 1409, 1412 (5th Cir.1983); McKinstry v. Genesee County Circuit Judges, 669 F.Supp. 801, 803 (E.D.Mich.1987); Emerick v. Emerick, 28 Conn.App. 794, 613 A.2d 1351, 1353 (1992); Stariha, 509 N.E.2d at 1121; Johnson v. Johnson, 11 Kan.App.2d 317, 721 P.2d 290, 294 (1986); Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228, 237 (1983); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493, 505 (1990); Gaudette v. Gaudette, 263 A.D.2d 620, 692 N.Y.S.2d 809, 811 (1999); McBride v. McBride, 334 N.C. 124, 431 S.E.2d 14,19 (1993): State v. Pultz, 206 Wis.2d 112, 556 N.W.2d 708, 717 (1996). The obligation to inform ensures that any waiver of the right to counsel is intelligent and competent. See Walker, 768 F.2d at 1185; Emerick, 613 A.2d at 1353. The requirement applies whether the contempt motion is brought by the state or by a private party, because the potential deprivation of physical liberty -is the same in either case. See Dube v. Lopes, 40 Conn.Supp. Ill, 481 A.2d 1293, 1294 (1984); Stariha, 509 N.E.2d at 1122. Likewise, the argument that incarceration is conditional and the defendant holds the keys to the jailhouse door does not apply to diminish the defendant’s liberty interest. See Walker, 768 F.2d at 1184; Ridgway, 720 F.2d at 1413-14. A defendant found in contempt and incarcerated does not hold the keys to the jailhouse door if the defendant cannot pay. See Mead, 460 N.W.2d at 501; McBride, 431 S.E.2d at 18. Although a defendant should not be jailed if truly indigent, this fact only highlights the need for assistance of counsel in establishing indigency to ensure the defendant is not improperly incarcerated. See Walker, 768 F.2d at 1184; Pultz, 556 N.W.2d at 714.

[¶ 23] These cases reflect the right to counsel when a defendant faces potential incarceration in a contempt proceeding is premised on the federal constitution. Our contempt statutes were heavily influenced by Wisconsin’s contempt system. See Note, North Dakota’s New Contempt Law: Will It Mean Order in the Court?, 70 N.D. L.Rev. 1040-41 (1994). We adopt the procedural requirements outlined by the Wisconsin Supreme Court -in Pultz, 556 N.W.2d at 716-17 (footnote and citation omitted) to implement this constitutional mandate:

To assure that the defendant who faces a threat to liberty at a contempt hearing is properly advised of the right to appointed counsel if he or she is found indigent, the circuit court must take the initiative. The circuit court must engage in a colloquy that clearly conveys the existence of this right to the defendant. Further, the colloquy must be initiated by the judge to inquire whether the defendant believes him or herself indigent. It is not sufficient, as the State would have here, that silence by the defendant in the absence of specific questioning means that indigency is not present.
Before the court proceeds on the contempt motion, it should advise the pro se defendant that if he or she is found to be in contempt, the court could impose sanctions which may include the defendant having to spend time in jail. The court must also instruct that the defendant is entitled to be represented by an attorney. If the defendant wants an attorney but is financially unable to pay for a lawyer, the court must advise the defendant that an attorney will be appointed at public expense. The circuit court must be satisfied that the defendant understands those rights and must make the necessary findings based upon the defendant’s answers and any other evidence the court receives. If the defendant wants to obtain counsel, the court should give the defendant a reasonable time either to retain counsel or, if indigent, to receive appointed counsel before proceeding on the contempt motion.

Although Pultz involved a contempt motion initiated by the government, the procedural requirements are no different when the contempt motion is initiated by a private party. See McBride, 431 S.E.2d at 19. These procedural requirements may be avoided if the trial court makes it clear to the defendant that incarceration will not be imposed as a sanction in the contempt proceedings. See Wilson v. State of New Hampshire, 18 F.3d 40, 41 (1st Cir.1994); Ridgway, 720 F.2d at 1415; Emerick, 613 A.2d at 1354.

[¶ 24] When a trial court has failed to inform a pro se defendant of his constitutional right to appointed counsel in a contempt proceeding in which the defendant faces potential incarceration, we will not attempt to discern whether the error was harmless. See Walker, 768 F.2d at 1185; Emerick, 613 A.2d at 1354; cf. State v. Dvorak, 2000 ND 6, ¶ 9, 604 N.W.2d 445 (stating denial of a defendant’s right to counsel at trial is not subject to harmless error analysis and requires reversal of conviction); State v. Orr, 375 N.W.2d 171, 178-79 (N.D.1985) (holding absent evidence of a valid waiver of a defendant’s right to counsel in a prior proceeding, an earlier conviction cannot be used to enhance a sentence for a subsequent offense of driving under the influence, and a silent record is insufficient to overcome the presumption that the prior uncounseled conviction was void for enhancement purposes). An indigent who appears without a lawyer cannot be charged with knowledge of the contempt laws, and a lack of record evidence of indigency beyond the mere assertion of it is itself evidence of a need for counsel. See Ridgway, 720 F.2d at 1412, 1415. We do not determine in this case whether Roland is indigent, but we conclude a trial court’s failure to inform a pro se defendant of the right to counsel is fatal to a finding of contempt as well as to orders related to that finding. See Emerick, 613 A.2d at 1354; McBride, 431 S.E.2d at 20.

[¶ 25] The record in this case does not show that the trial court informed Roland of his right to counsel. We need not decide the precise time the trial court’s obligation to inform Roland arose. At the very latest, however, the trial court was obligated to inform Roland at the early stages of the February 19, 2002 purge hearing. See Russell v. Armitage, 166 Vt. 392, 697 A.2d 630, 635-36 (1997) (holding defendant was not entitled to appointment of counsel at first hearing where he was found in contempt and informed failure to comply with conditions would result in incarceration, but was entitled to appointment of counsel at second hearing to determine whether he had purged himself of the contempt). Because Roland was not informed of his right to counsel during either of the contempt proceedings, we reverse the contempt order, the warrant of attachment, and the money judgment and remand to the trial court.

V

[¶ 26] We briefly address an additional issue raised by Roland which gives us concern and is likely to arise again upon remand.

[¶ 27] The trial court found Roland liable to pay a prorated share of the 2001 real estate taxes on Jenese’s property to account for his ownership of the property from January through May 2001. The divorce judgment provided, “[p]rior to June 1, 2001, Roland shall be solely and separately liable upon any and all debt, loan, utility and any other payment or liability relative to the above-referenced parcels of real estate.” However, under N.D.C.C. § 57-20-01, “[a]ll real and personal property taxes and yearly installments of special assessment taxes become due on the first day of January following the year for which the taxes were levied.” Consequently, the 2001 real estate taxes were not due until January 1, 2002, and were not a debt, payment or liability of Roland’s before June 1, 2001. The trial court erred in holding Roland liable for a prorated share of the 2001 real estate taxes.

VI

[¶ 28] The contempt order, warrant of attachment and money judgment are reversed and the case is remanded for further proceedings.

[¶ 29] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2003 SD 53
    Mark CHILSON and Lonna Chilson, Plaintiffs and Appellants, v. KIMBALL SCHOOL DISTRICT NO. 7-2, Gary Heintz and Eileen Kroupa, Defendants and Appellees.
    No. 22533.
    Supreme Court of South Dakota.
    Considered on Briefs on March 24, 2003.
    Decided May 14, 2003.

      George F. Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, South Dakota, Attorneys for plaintiffs and appellants.
    Rodney Freeman, Jr. of Churchill, Ma-nolis, Freeman, Kludt, Shelton & Burns, Huron, South Dakota, Attorneys for defendants and appellees.
   PER CURIAM.

[¶ 1.] Mark Chilson and Lonna Chilson appeal the circuit court’s grant of summary judgment in favor of Kimball School District No. 7-2, Gary Heitz and Eileen Kroupa on the basis that the complaint was barred by the applicable statutes of limitations. We affirm.

FACTS AND PROCEDURE

[¶ 2.] As this is a review of a summary judgment, we view the facts in the light most favorable to the nonmoving party. Mark Chilson was employed by the Kim-ball School District as a middle school teacher and an elementary school physical education instructor. He had been with the school district for approximately twelve years and taught a variety of subjects, coached various sports, and served as the school’s athletic director. On April 10, 2000, he received a notice that his contract would not be renewed as the result of a reduction in force (RIF) decision.

[¶ 3.] Before receiving this notice, Chil-son and other teachers had received financial information from the school’s business manager, Eileen Kroupa, indicating that a RIF was necessary in light of a projected $239,000 budget shortfall. After receiving the RIF notice, Chilson filed a grievance with the school board contesting the decision not to renew his contract. That grievance alleged that:

Kimball School System did not follow their current [RIF] policy. An improper application of the Kimball School’s [RIF] policy was taken when a nontenured teacher was not renewed for the 2000-2001 school year. Non-tenured teacher(s) with less seniority were not removed before Mr. Chilson was nonre-newed.

[¶ 4.] On June 13, 2000, Chilson’s grievance was denied by the school board. He did not appeal. Shortly thereafter Chilson requested updated financial information from the school. He received that information in July or August of 2000. The information revealed that in actuality the projected budget shortfall did not occur and instead the school district ended up with a surplus of funds for the year.

[¶ 5.] Chilson and his wife filed suit on November 14, 2001, alleging deceit, negligent misrepresentation, and failure to rehire. His wife was apparently named as a party based on a loss of consortium and emotional distress claim for damages. The deceit and negligent misrepresentation claims were voluntarily dismissed by Chilson because he failed to comply with the 180 day notice provision contained in SDCL 3-21-2. The remaining count in the complaint sought damages for the school district’s failure to follow the RIF policy.

[¶ 6.] The school district moved for summary judgment on the ground that the RIF decision was barred by the applicable statutes of limitations found in SDCL 3-18-15.2 and SDCL 13-46-1. The circuit court granted summary judgment, ruling Chilson’s cause of action was untimely and had to be dismissed. Chilson appeals.

STANDARD OF REVIEW

[¶ 7.] The standard under which we review summary judgment is well established:

Summary judgment shall be granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. On the other hand, ‘[t]he party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.’

Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 6, 575 N.W.2d 457, 459. “Summary judgment should only be granted on the statute of limitations when application of the law is in question, and not when there are issues of material fact.” Kurylas, Inc. v. Bradsky, 452 N.W.2d 111, 113 (S.D.1990).

ANALYSIS

ISSUE

[¶ 8.] Did the circuit court err in granting summary judgment?

[¶ 9.] In his complaint, Chilson asserted the following as support for his cause of action for failure to rehire:

12. That the Defendants have failed to allow [Chilson] his right of rehire under the RIF policy used to terminate him.
13. That under the RIF policy of the defendant District that [Chilson] has been entitled to be re-employed by the District.

Initially, Chilson filed a grievance alleging that a less senior teacher kept her job while he did not. He never filed, or attempted to file, a grievance challenging the financial information underlying the RIF decision after discovering that the projected shortfall was never realized. Instead, in his affidavit he claims that two South Dakota Education Association employees, who advised him of his rights, failed to tell him of the notice requirement for filing a claim in circuit court or with the Department of Labor. In addition, he alleges that they failed to advise him of the possibility of filing an additional grievance based on the allegedly improper RIF numbers. Chilson concedes that this issue has not been addressed by either the school board or the Department of Labor, but was advanced for the first time in the complaint filed with the circuit court.

[¶ 10.] When releasing a teacher under a RIF policy, a school district “must abide by its [policy] terms.” Gettysburg School District 5S-1 v. Larson, 2001 SD 91, ¶ 10, 631 N.W.2d 196, 200. However, the only grievance presented to the school board was denied and Chilson did not appeal from that decision. Here, Chilson takes the position that there should have been no RIF at all because the financial forecasts were inaccurate. Yet, the language of the RIF policy does not mandate a budget deficit as a necessary condition to invoke a reduction of staff. The policy instead provides:

Whenever in the judgment of the Board of Education because of the financial condition of the district, priority of programs and/or program elimination it is advisable or necessary to reduce the number of teaching or administrative employees in the district, [a RIF may occur.]

Kroupa, the business manager, also asserted in her affidavit that the policy does not require a RIF to be based on a budget deficit. The circuit court recognized that this dispute may have created a genuine issue of material fact had it not been for the statute of limitations. Therefore, we need only address the statute of limitations issue.

[¶ 11.] This Court has implicitly recognized that there are two avenues for appeal from a school board’s employment decision in this type of situation. See Cox v. Sioux Falls School District 49-5, 514 N.W.2d 868, 872 (S.D.1994). Those avenues as are follows:

If, after following the grievance procedure enacted by the governing body, the grievance remains unresolved, except in cases provided for in § 3-6A-38, it may be appealed to the Department of Labor, if notice of appeal is filed with the department within thirty days after the final decision by the governing body is mailed or delivered to the employee.

SDCL 3-18-15.2 (emphasis added).

From a decision made by any school board, or by a special committee created under any provision of the school law relative to a school or school district matter or in respect to any act or proceeding in which such officer, board, or committee purports or assumes to act, an appeal may be taken to the circuit court by any person aggrieved, or by any party to the proceedings, or by any school district interested, within ninety days after the rendering of such decisio n. Provided, however, that all legal actions relative to bond issues must be started within ten days.

SDCL 13-46-1 (emphasis added).

[¶ 12.] As previously mentioned, Chil-son concedes that his argument concerning whether the financial figures supported a RIF has never been addressed by the school board and therefore he did not use either avenue for appeal. Instead, he asserts that this claim is independent of the grievance process and as a result is not time barred by either of these provisions. Though Chilson alleges that the information used to justify the RIF was wrongfully withheld, he does not argue that the statute of limitations contained in either statute was tolled. In fact, it appears that Chilson obtained that information before the expiration of the 90 day period to appeal to the department of labor.

[¶ 13.] It is readily apparent from the allegations in his complaint that Chilson is attempting to challenge a RIF decision made by the school board. As such, he was required to comply with the requisite statutes to invoke review of the decision. See Hall v. Salem, 88 S.D. 202, 217 N.W.2d 160, 162 (1975) (“Compliance with the 90 day requirement not having been made, the circuit court acquired no jurisdiction and should have granted the motion to dismiss the appeal.”). Additionally, the “Employee Grievance Procedure” contained in Chilson’s contract provides that a grievance should be first filed with the school principal, then the superintendent of school, and finally with the board of education. In this regard, “after reviewing the written appeal, the board may appoint a fact finder to review the grievance.” Because of the posture of this case, the school board has not had such an opportunity. Other courts have recognized that an employee who is discharged “must exhaust all internal administrative remedies as provided for in his employment contract prior to seeking judicial review.” Nemazee v. Mt. Sinai Medical Center, 56 Ohio St.3d 109, 564 N.E.2d 477, 483 (1990).

[¶ 14.] This situation is similar to the facts in this Court’s recent decision in Small v. Department of Social Services, 2003 SD 29, 659 N.W.2d 15. In that case, an aggrieved party failed to appeal an administrative determination but, instead, later went directly to circuit court asserting that jurisdiction was proper because the new cause of action was framed as a declaratory judgment. Id. ¶ 8. However, the failure to appeal the original determination deprived the circuit court of jurisdiction. Id. ¶20. This Court held that proceeding with the attempted action would be contrary to the exhaustion of remedies requirement. Id. ¶ 16.

[¶ 15.] The circuit court correctly determined that this challenge to the RIF decision necessarily had to comply with the procedures set forth in either SDCL 3-18-15.2 or SDCL 13-46-1, before proceeding to the circuit court. Though allegations of wrongdoing are apparent in Chilson’s affidavit, Chilson did not argue in the circuit court that the provisions to properly file the grievance were tolled. “Since the statute of limitations had run, summary judgment is presumed to be correct and the burden is on [Chilson] to establish that the statute of limitations was tolled.” Witte v. Goldey, 1999 SD 34, ¶ 9, 590 N.W.2d 266, 269. Instead, Chilson argues that because he is seeking money damages for breach of contract those statutes are inapplicable. Through this route Chilson attempts to avoid both the statutory requirements for challenging the employment decision and the school district’s grievance procedures.

[¶ 16.] In framing his argument, Chil-son attempts to avoid characterizing this as a tort action because of his failure to provide notice under the 180 day rule set forth in SDCL 3-21-2. In essence, he seeks the benefit of a tort action, which can be brought in circuit court without the exhaustion of administrative remedies, but also seeks to avoid the procedures under the contract for grievances. See O’Toole v. SD Retirement System, 2002 SD 77, ¶ 17, 648 N.W.2d 342, 347. This attempted route is improper and the circuit court did not err in granting summary judgment.

[¶ 17.] Affirmed.

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . SDCL 13-43-6.4 requires written notice by April 15 that a teacher’s contract will not be renewed due to a reduction in staff. Thus, the school district provided timely notice.

      . These employees are not named defendants in this action.


author: KONENKAMP, Justice. .SABERS, Justice,

text:
    2003 SD 59
    John J. ESLING, Holly Baker, Paul Baker, Gloria Baker, David Meredith, Steinmeyer Farms, Inc. and Save Centennial Valley Association, Appellants, v. Jerry KRAMBECK, Mayor of Spearfish, and the Common City Council of the City of Spearfish and the Lawrence County Commission, appellees.
    No. 22473.
    Supreme Court of South Dakota.
    Argued Jan. 14, 2003.
    Decided May 21, 2003.

      Reed C. Richards of Richards & Richards, Deadwood, South Dakota, Attorney for appellants.
    John Fitzgerald, Lawrence County State’s Attorney, Bruce Outka, Lawrence County Deputy State’s Attorney, Deadwood, South Dakota, Attorneys for appel-lee Lawrence County.
    Lester Nies of Hood, Nies & Dardis, Spearfish, South Dakota, Attorney for ap-pellee Krambeck et al.
   KONENKAMP, Justice.

[¶ 1.] In this appeal from a denial of a writ of certiorari, we review the circuit court’s ruling that the City of Spearfish lawfully annexed territory under a voluntary petition for annexation. We affirm.

Background

[If 2.] A petition for voluntary annexation under SDCL 9-4-1 was presented to the Spearfish Planning Commission for concurrent annexation and zoning. The property involved is locally known as “Centennial Valley.” It includes the county airport, a few small ranches, the Daryll Propp land (formerly the Frawley Ranch), and the John Esling ranch. The petitioned territory consisted of approximately 2,000 acres and shared a common border with the City of Spearfish. For zoning, the territory was to be designated as an AG Agricultural Conservation District with a Rural Service District tax designation, except the county airport, which was to be zoned for its use.

[¶ 3.] In September 2001, the Lawrence County Commission authorized its chairperson to sign the voluntary annexation petition to include the county owned airport. At the same time, under SDCL 9-4-5, the Lawrence County Commission passed a motion approving the city’s annexation of unplatted lands described in the petition. A week later, the Spearfish Planning Commission scheduled a hearing on the voluntary annexation petition, and published a notice of public hearing on the matter. Approximately one month later, the Spearfish Planning Commission held its public hearing. Despite objections to the annexation by the applicants here, the Commission unanimously recommended that the City Council approve the annexation petition. After published notices, the City Council held three public hearings on the voluntary annexation. The following actions were adopted unanimously: Resolution 2001-33 for annexation, Ordinance 904 for zoning, and Ordinance 905 for the rural service district.

[¶ 4.] The City Council found that the total value of the territory subject to voluntary annexation was $1,913,730 and that the owners of $1,435,298 in value signed the annexation petition (89.94%) In calculating the total value of the territory, the City of Spearfish included the insured value of the Lawrence County Airport public hanger and the value of the privately owned airport hangers on ground leases.

[¶ 5.] To overturn the annexation, the applicants filed for a writ of certiorari. In its decision, the circuit court subtracted the value of the privately owned airport hangers from the total value, finding that the private owners did not constitute “owners of ... the ... territory sought to be annexed.” Nevertheless, the court held that the insured value of the public hanger was properly included in the total value of the annexed territory and that the owners of more than three-fourths of the total value had signed the petition. The applicants appeal, asserting the following errors: (1) “The city and county exceeded their authority in accepting the values used in the voluntary annexation petition.” (2) “The city exceeded its authority since the annexed area is not contiguous.” (3) “The change of zoning in the annexed area is contrary to the initiated ordinance.”

Standard of Review

[¶ 6.] Our review of certiorari proceedings is limited to whether the challenged court, officer, board, or tribunal had jurisdiction and whether it regularly pursued its authority. Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶ 6, 567 N.W.2d 880, 883. Certiorari proceedings “cannot be used to examine evidence for the purpose of determining the correctness of a finding....” Willard v. Civil Service Bd. of Sioux Falls, 75 S.D. 297, 298, 63 N.W.2d 801, 801 (1954). Construing a statute entails answering a question of law; thus, we review the circuit court’s statutory interpretation de novo. Ridley v. Laurrence County Comm’n, 2000 SD 143, ¶ 5, 619 N.W.2d 254, 257 (citations omitted): The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. City of Rapid City v. Anderson, 2000 SD 77, ¶ 7, 612 N.W.2d 289, 291-92 (citations omitted). The intent of a statute is determined from what the Legislature said, rather than what we think it should have said. Id. Words and phrases in a statute must be given their plain meaning and effect. Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted). In interpreting statutes, we presume that the Legislature did not intend an absurd result. Id. We review a trial court’s findings of fact under the clearly erroneous standard and its conclusions of law under the de novo standard. City of Marion v. Rapp, 2002 SD 146, ¶ 5, 655 N.W.2d 88, 90.

Analysis and Decision

1. Value of the Territory

[¶ 7.] The applicants first contend that the circuit court erred in declaring it proper for the city to use the insured value of the public hanger. To address this argument, we review the language of SDCL 9-4-1. Voluntary annexation under that statute requires that the petition must be signed: (1) by not less than three-fourths of the registered voters, and (2) by the owners of not less than three-fourths of the value of the territory sought to be annexed. SDCL 9-4-1. The applicants do not challenge the first element. Rather, they dispute whether the second requirement was met, regarding the “value of the territory.” They insist that the term “value” in SDCL 9-4-1 means only the “assessed value” of real property subject to voluntary annexation, and therefore, the circuit court erred when it upheld the city’s decision to include the insured value of the public airport hanger in the total value of the annexed territory. On this precise point, the statute is silent.

[¶ 8.] Accordingly, we must ascertain the meaning of the term “value” as used in SDCL 9-4-1. Statutory wording is given its ordinary meaning, unless it appears from the context that another meaning is intended. Douville v. Christensen, 2002 SD 33, ¶ 11, 641 N.W.2d 651, 654. When a statutory term is not defined, we construe it according to its accepted usage. Spearfish ETJ Planning Comm’n, 1997 SD 105 at ¶ 13, 567 N.W.2d at 885. The ordinary meaning of the term “value” is “the monetary worth or price of something; the amount of goods, services, or money that something will command in an exchange.” Black’s Law Dictionary 1549 (7th ed.1999).

[¶ 9.] Several courts have declared that in voluntary annexations the “assessed value” of the property must be used. But those cases all dealt with statutes that included the word “assessed” or some variation of it. City of Phoenix v. State, 58 Ariz. 8, 117 P.2d 87 (1941); Thain v. City of Palo Alto, 273 Cal.App.2d 400, 78 Cal. Rptr. 240 (1969); Johnson v. City of Spokane, 19 Wash.App. 722, 577 P.2d 164 (1978). In contrast, SDCL 9-4-1 does not expressly state that the “value of the territory” must be the assessed value. If the Legislature had intended to limit “value” to “assessed value,” it certainly could have done so. Without specific statutory direction, therefore, we think the question comes down to a matter of reasonableness.

[¶ 10.] With certiorari review limited to the question whether the city had jurisdiction and whether it regularly pursued its authority, we ask, did the city act in excess of its- jurisdiction or in an irregular pursuit of its authority? Given the broad scope of the word “value” in SDCL 9-4-1, only an unreasonable application of the statute would constitute an act in excess of jurisdiction. Thus, the city’s “action will be sustained unless in [its] proceedings [it] did some act forbidden by law or neglected to do some act required by law.” Save Centennial Valley Ass’n, Inc. v. Schultz, 284 N.W.2d 452, 454 (S.D.1979) (citing State v. State Bd. of Assessment and Equalization, 3 S.D. 338, 53 N.W. 192 (1892)).

[¶ 11.] First, was it reasonable to include the value of the county owned hanger for purposes of SDCL 9-4-1? We conclude that it was. Lawrence County, as a body politic, has the right to petition the City of Spearfish to include its property within the city limits. After it is determined that the owner of the property in question may properly petition for voluntary annexation, SDCL 9-4-1 directs the city to consider the value of Lawrence County’s territory (the airport) seeking annexation. The term “territory,” as used in SDCL 9-4-1, is synonymous with the term “area” and the real property within that area. Real property consists of “land; that which is affixed to the land; that which is incidental or appurtenant to land; and that which is immovable by law.” SDCL 43-1-3. Accordingly, it was proper for the city to consider the value of the airport land and the value of the airport hanger affixed to the land. See Johnson, 19 Wash.App. 722, 577 P.2d 164 (city owned property was included in the valuation for property seeking annexation); Thain, 273 Cal.App.2d 400, 401, 78 Cal. Rptr. 240 (“ ‘value of the territory’ means the value of land and improvements thereon”).

[¶ 12.] Second, was it reasonable to use the insured value of the county owned hanger? Or, put another way, how should the property value of the Lawrence County Airport be reasonably determined? Again, the statute is silent on how the property should be valued. Given this, any reasonable method of valuation would seem appropriate. Of course, the city could have had the hanger appraised by the county assessor. See Johnson, 19 Wash.App. 722, 577 P.2d 164 (even though city’s property was exempt from tax, the county assessor could assess the property for valuation purposes). Or it could have had a private appraisal. But nothing in our law mandates a particular type of appraisal in this instance. Absent a showing that the building was underinsured, its insured value reflects the cost of replacement should it be totally destroyed.

[¶ 13.] We conclude that for the purposes of SDCL 9-4-1, the insured value of the hangar was a reasonable valuation. Our scope of review is limited to whether the city had jurisdiction and whether it regularly pursued its authority. Spearfish ETJ Planning Comm’n, 1997 SD 105 at ¶ 6, 567 N.W.2d at 883. In our view, the city acted within its authority.

[¶ 14.] Next, the applicants contend that the city’s use of the insured value of the public airport hanger to determine value for purposes of SDCL 9-4-1 violates their constitutional rights. They believe that the two different valuation methods (i.e. the insured value of the public hanger and the assessed value of the real property for tax purposes) used by the city to determine the value of the annexed territory violates their equal protection and due process rights. The valuation of applicant Esling’s land included the value of both the land and the improvements as calculated by the county assessor for tax purposes. SDCL 10-6-35.

[¶ 15.] Under traditional equal protection analysis, it is clear from the test in City of Aberdeen v. Meidinger, 89 S.D. 412, 415, 233 N.W.2d 331, 333 (1975), that SDCL 9-4-1 does not implicate any legitimacy, gender, suspect classes, or fundamental rights and should be reviewed under the rational basis test. Under the first prong of the Meidinger test, SDCL 9-4-1 applies equally to all people. Lyons v. Lederle Laboratories, A Div. of American Cyanamid Co., 440 N.W.2d 769, 771 (S.D. 1989). The statute is inclusive of all petitioners who are owners of property within the annexed territory and uses a single standard: “value.” No arbitrary classification exists. Likewise, the second prong of the Meidinger test has been met. The method used to ascertain value bears a rational relationship between the classification and some legitimate government interest. The city was presented with a voluntary petition to annex territory it deemed to be contiguous and within the natural path of community growth. Under SDCL 9-4-1, the city was then required to confirm that the petition met the minimum value and voter requirements. In determining “value,” the city relied on independent evidence of “value” for the territory seeking annexation. Clearly, the city’s actions bore a rational relationship to a legitimate government purpose. We find no violation of equal protection rights.

[¶ 16.] Although the applicants do not specify whether they suffered a denial of procedural or substantive due process rights, we conclude that neither has been violated. Procedural due process protects certain substantial rights, such as life, liberty, and property, that cannot be deprived except in accord with constitutionally adequate procedures. Tri County Landfill Ass’n, Inc. v. Brule County, 2000 SD 148, ¶ 13, 619 N.W.2d 663, 668 (Tri County IT) (citations omitted). Procedural due process “is flexible and requires only such procedural protections as the particular situation demands.” Id. (citations omitted).

[¶ 17.] Applicant Esling received a personal letter containing the annexation petitions and his attorney attended the public hearing before the Planning Commission. Likewise, all notices of hearing were duly published, and notice to the applicants was clear, public, timely, and unequivocal. None of the applicants were deprived of life, liberty, or property. Applicant Esling, for example, continues to own his property, which was formerly zoned agricultural and is currently zoned as an AG Agricultural Conservation District within the City of Spearfish and is under a Rural Service District for property tax purposes.

[¶ 18.] Similarly, no substantive due process violation has been shown. “A violation of substantive due process occurs when ‘certain types of governmental acts [breach] the Due Process Clause regardless of the procedures used to implement them.’ ” Tri County Landfill Ass’n, Inc. v. Brule County, 2002 SD 32, ¶10, 641 N.W.2d 147, 151 (2002) (Tri County III). Substantive due process analysis begins with an examination of the “interest allegedly violated.” Id. at ¶ 13, 641 N.W.2d at 151-52. Under Tri County III, the applicants are unable to show that they have a protected property interest in not being annexed. The applicants cannot validly argue that they have been deprived of county zoning jurisdiction, because they have no protected property interest in a particular zoning law. Furthermore, even if applicant Esling had a protected property interest, he has not demonstrated that the city’s use of assessed value for his property and insured value for the public hanger was “truly irrational.” Id. at ¶ 11, ¶ 20, 641 N.W.2d at 151, 153. To sustain a substantive due process claim founded on a zoning dispute, the applicants must show that the “government’s action was ‘sufficiently outrageous’ or ‘truly irrational.’” Id. at ¶ 11, 641 N.W.2d at 151 (citations omitted). We conclude that Esling and the other applicants were afforded full due process and equal protection under the law.

2. Contiguous Territory

[¶ 19.] The applicants contend that the circuit court erred in finding that the territory annexed was “contiguous.” Voluntary annexation under SDCL 9-4-1 requires that the territory to be annexed must be “contiguous.” The applicants argue that the territory in question is not “contiguous” to the City of Spearfish. This argument fails in both law and fact. To be contiguous, the annexed territory must: (1) be contiguous to the city, (2) encompass a community of interests, and (3) constitute a natural and reasonable inclusion. Anderson, 2000 SD 77 at ¶ 10, 612 N.W.2d at 292; Krebs v. City of Rapid City, 364 N.W.2d 128, 130 (S.D.1985); Big Sioux Township v. Streeter, 272 N.W.2d 924 (S.D.1978).

[¶ 20.] Under the statute, the term “contiguous” includes “territory separated from the municipality by reason of intervening ownership of land used as a golf course or any land owned by the State of South Dakota or any subdivisions thereof.” SDCL 9-4-1. Our review of cases in other jurisdictions reveals that “contiguous” has been interpreted to mean “adjacent,” “adjoining,” or having a “substantial common boundary.” Anderson, 2000 SD 77 at ¶ 12, 612 N.W.2d at 293 (citations omitted).

[¶ 21.] Here, the annexed property physically adjoins the city. The Lawrence County Airport, land owned by a subdivision of the State of South Dakota, shares a common border with the City of Spearfish. SDCL 9-4-1. Further, the total length of the annexed territory from east to west is more than three miles, and the depth of the territory north to south ranges from one-half mile to one and one-half miles. This fact defeats the applicants’ contention that this is the type of annexation commonly referred to as a “corridor,” “strip,” “shoestring,” or a “long lasso,” disallowed by a majority of courts, including this Court. Anderson, 2000 SD 77 at ¶ 13, 612 N.W.2d at 293 (citations omitted). In sum, we conclude that the territory is contiguous to the city, shares a common border of reasonable length and width, lacks any significant physical barriers or irregular shapes, and has no unjustified narrow corridors, enclaves, or islands of unannexed territory.

[¶ 22.] Next, we consider whether the annexation encompasses a community of interests and is natural and reasonable. The city documented in detail its consideration of the voluntary annexation petition and its finding that the annexation encompassed a community of interests. In addition, the petitioners stated that “we share a common bond and community of interest ■with the City of Spearfish and wish to be contributing members of the community.”

[¶ 23.] In Big Sioux Township, 272 N.W.2d at 926, this Court wrote:

[a] natural and reasonable annexation may result from the following justifications: a need resulting from the orderly growth and development of the municipal corporation; an outflow of benefits including services and facilities to the outlying territory without a corresponding inflow of monetary contribution for such benefits resulting in an uncompensated burden to the municipal corporation; or an expressed need that the outlying territory has for services and facilities that the municipal corporation is able and willing to provide.

See also Krebs, 364 N.W.2d at 130-31. Here, the city found that the annexation was natural and reasonable, since it was compatible with Lawrence County’s comprehensive plan. Moreover, the annexed territory is within the boundaries of the Spearfish Fire Department fire protection district, Spearfish School District 40-2, and the retail trade and medical service area of the city. The annexation encompasses a community of interests and is natural and reasonable.

[¶ 24.] The applicants contend that the annexation improperly excluded a long established residential development located adjacent to the airport property. This argument might be compelling if the city initiated the annexation. But this is a voluntary annexation, and the residents of that development did not seek to be annexed. We conclude that the city did not exceed its jurisdiction and authority in approving the annexation petition. The annexed territory is “contiguous,” encompasses a community of interests, and is a natural and reasonable inclusion to the City of Spearfish.

3. Zoning

[¶ 25.] Finally, the applicants contend that the city’s change of designation from A-l Agriculture zoning to an AG Agricultural Conservation District in the annexed area is contrary to the initiated county zoning ordinance. In June 2001, the voters of Lawrence County passed a county zoning ordinance by initiative in response to the proposed Frawley Ranch development. The ordinance recognized that certain portions of the annexed territory have historically been designated as A-l Agriculture by the Lawrence County Comprehensive Plan and Zoning Ordinance. The initiated ordinance provided that no change in zoning of Centennial Valley be approved or allowed for a period of six years.

[¶ 26.] Under SDCL ch 9^4, a city has the authority to annex contiguous territory. Municipal annexation is subject to approval by the county commissioners if the territory is unplatted, as it was in this case. SDCL 9-4-5. The Lawrence County Commissioners had the authority to approve the annexation. Furthermore, the language of the initiated ordinance did not limit the county commissioners’ authority to approve the proposed annexation. A city has comprehensive planning powers within its corporate limits and can also zone all property within three miles of its corporate limits concurrently with the county zoning commission. SDCL ch 11-2 and SDCL ch 11-4; Lincoln County v. Johnson, 257 N.W.2d 453 (S.D.1977).

[¶ 27.] Although this Court has never addressed the issue of whether a city may zone territory upon annexation contrary to a county zoning ordinance, other jurisdictions have. These courts have held that once a city annexes a territory, it has exclusive zoning jurisdiction over that territory. Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209, 212 (1968) (county zoning ordinances cease to apply to land annexed to city); Taylor v. Bowen, 272 N.C. 726, 158 S.E.2d 837, 839 (N.C.1968) (after annexation county lost jurisdiction to zone); City of South San Francisco v. Berry, 120 Cal.App.2d 252, 254, 260 P.2d 1045, 1046 (1953) (same); Louisville & Jefferson County Planning & Zoning Comm’n v. Fortner, 243 S.W.2d 492, 494 (Ky.App.1951) (same).

[¶ 28.] Here, then, the initiated county zoning ordinance ceased to apply once the territory was removed from the county’s jurisdiction by annexation. For this reason, it matters not whether the city zoned the land as agricultural or as residential. The city properly exercised its authority. In one respect, we disagree with the circuit court that the zoning issue was premature. We hold, instead, that Spearfísh has exclusive jurisdiction to zone the annexed territory and that the territory is no longer subject to the initiated county zoning ordinance.

[¶ 29.] Affirmed.

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

[¶ 31.] SABERS, Justice, dissents.

.SABERS, Justice,

(dissenting).

[¶ 32.] I dissent because the actions of the City and County in this case were unreasonable and illegal.

[¶ 33.] 1. The City and County improperly diluted the value of Es-ling’s property by including the airport property in the valuation.

[¶ 34.] It is fundamentally unfair to sweep up an unwilling landowner in a “voluntary” annexation by the simple expedient of using the value of county-owned property to dilute the value of the unwilling landowner’s property. Esling owns 38% of the total area of the real estate in this annexation. Absent the value assigned to the airport property, Esling’s property constitutes 30.5% of the total value of the property. There could not have been a “voluntary” annexation of this land without including the value of the county-owned property because Esling’s refusal to sign the petition would have been fatal to the annexation effort. SDCL 9-4-1 provides in part that the petition for voluntary annexation must be signed by “the owners of not less than three fourths of the value of the territory sought to be annexed!.]” It was unreasonable to include the value of the airport property in determining the value of property in the annexation petition. Public property is generally excluded in determining value for annexation. For example, public streets, alleys, parkways and sidewalks are excluded. See e.g. City and County of Denver v. Holmes, 156 Colo. 586, 400 P.2d 901, 902-3 (1965). The County has the right to petition for annexation, but it should not have the right to do so at the expense of surrounding landowners. It is not the County that will be liable for municipal taxation, it is Esling and the value of his property should not be diluted for annexation purposes by the entity which will not bear the burden of annexation.

[¶ 35.] 2. The annexed property was not a natural or reasonable inclusion and therefore is only artificially contiguous.

[¶ 36.] The land annexed to the City is not a natural or reasonable inclusion and therefore is only artificially contiguous. In support of its determination that the annexation was a natural and reasonable inclusion, the majority opinion states “the City found that the annexation was natural and reasonable, since it was compatible with Lawrence County’s comprehensive plan.” This finding by the City is simply untrue. The annexation led to rezoning of the area in direct contravention of the initiated ordinance which prohibited such zoning changes. Furthermore, the annexation excluded the residential subdivision which is adjacent to the airport property and extends in a strip into the annexed property. See Exhibit A attached hereto as Voluntary Annexation Map.

[¶ 37.] This annexation meets none of the criteria cited by the majority opinion from Big Sioux Township to determine whether the annexation is reasonable and natural. 272 N.W.2d 924 (S.D.1978).

[¶ 38.] First, it does not result from orderly growth of the city because orderly growth does not have an unannexed strip in the middle. See exhibit A, Voluntary Annexation Map attached hereto. This Court reversed a similar annexation attempt in City of Rapid City v. Anderson, 2000 SD 77, 612 N.W.2d 289, where the city attempted to annex a narrow strip of land in order to annex the airport property-

[¶ 39.] Second, there is no “outflow of services” to the annexed properties to justify the need for a corresponding inflow of compensation. In fact, by not annexing the subdivision adjacent to the airport, the city received the benefits of annexing the other property without the burden of providing services.

[¶ 40.] Third, there is no expressed need for services for this annexed territory. Finally, if the City was willing and able to provide services and facilities for this annexation, the developed subdivision should have been included in the annexation.

[¶ 41.] Simply stated, the City, County and developer wanted the Propp land to be annexed. With this ultimate goal in mind, they annexed only the property necessary to make the Propp land physically contiguous to the City. This is not a reasonable or natural extension, it is merely a legal ploy to get what the developer, City and County could not get from the voters; rezoning of the land around Exit 17 so that it could be developed in a piecemeal fashion.

[¶ 42.] 3. The County acted unreasonably in ignoring the initiated ordinance.

[¶ 43.] The County’s blatant disregard of the voter’s initiated ordinance was unreasonable. Propp and the city of Spearfish have been battling for years to change the zoning around Exit 17 for the purpose of piecemeal development of this property. The voters of Lawrence County have consistently and legally thwarted those efforts. The last attempt by the voters of the County to make their will known was the initiated ordinance of June 2001 which provided in part:

[w]hereas this Lawrence County Comprehensive Plan has areas that have been designated as A-l agriculture in compliance with the Comprehensive Plan and Zoning Ordinances that require A-l agriculture zones be maintained to allow suitable areas of Lawrence County to be retained in agricultural uses,[and] to prevent scattered non-farm, development ... [b]e it ordained that no change of zoning ... be approved or allowed for a period of six years from the date of the adoption of this ordinance.

(emphasis supplied). There is no question that the language in this ordinance is directly aimed at development of the property surrounding Exit 17. Now the City, County and developer have simply found an improper way to get around the will of the voters in this County. We have held that when a County Commission disregards the clear intent of a comprehensive plan it exceeds its authority. See e.g. Save Centennial Valley Association Inc. v. Schultz, 284 N.W.2d 452, 457 (S.D.1979). Given the history of the City and the developer, the County was aware that the City’s first step would be to change the zoning of this area. By signing the voluntary annexation petition, the Commission disregarded the desire of its constituents and exceeded its authority. This behind the scenes end run was overreaching, unreasonable and illegal and should not be sanctioned by this Court.

[¶ 44.] We should order the circuit court to vacate this annexation.

      .
      Lawrence County Airport 440.00 acres no assessed value
      Public hanger structure $ 950,000 (insured value)
      Private Airport Lessees
      Daniel P. Custis, Jr. $ 23,030
      Duane Berke * $ 15,940
      Rich Krogstad $ 15,280
      Bill Povandra $ 6,190
      Ted J. Miller $ 108,280

        Star Aviation $ 165,720
      Other Real Estate Tracts
      Frawley Ranches, Inc. $ 130,530 404.77 acres
      William Carlstrom $ 87,830 154.57 acres
      Richard Carlstrom Uttke Family Limited Pt. $ 49,220 $ 185,070 280.00 acres
      John H. Esling  $ 176,640 797.24 acres
      Total $1,913,730
      75% of Value $1,435,298
      Value of Petitioners $1,721,150
      Petitioners Percentage of Value 89.94%

       Denotes non-petitioner

      . The Lawrence County Airport has improvements located within its boundaries, including privately owned hangers on ground leases and the public hanger building. The annexation petition was signed by owners of the private hangers, which were assessed for tax purposes as real property.

      . We need not review the correctness of the circuit court’s decision to exclude the value of the private hangars on leased ground. The total value of the properly within the territory without the leased property is $1,595,230. Of that amount, the petitioners accounted for $1,402,650 or 87.93 percent of the total value. Thus, the required value was well over the statutory minimum amount of not less than three-fourths of the total value of the territory seeking annexation.

      . SDCL 9-4-1 provides in part:
      The governing body of a municipality, upon receipt of a written petition describing the boundaries of any territory contiguous to that municipality sought to be annexed to that municipality, may by resolution include such territory or any part thereof within such municipality if the petition is signed by not less than three-fourths of the registered voters and by the owners of not less than three-fourths of the value of the
      territory sought to be annexed to the municipality.

      . It appears that there are five registered voters, William and Jane Carlstrom, Richard and Gwen Carlstrom, and Steven Meyer, who reside within the territory seeking annexation. All five signed the voluntary petition for annexation. Therefore, well over three-fourths of the registered voters residing in the area seeking annexation signed the petition as required by SDCL 9-4-1.

      . There is no explicit pronouncement in the municipal annexation statutes, SDCL Chapter 9-4, that publicly owned property should be excluded nor is there any such implication.

      . A review of the record reveals that the City of Spearfish immediately zoned the territory upon annexation.

      . The amount and value of the properties involved are:

      440 Acres No assessed value
      Hangar: Appraised Value: $950,000
      Real Estate
      Frawley Ranches, Inc: 404.77 acres $130,530
      Carlstrom: 154.57 acres $ 87,830
      Uttke Family LP: 280 acres $185,070
      Esling: 797.24 acres $176,640.


author: VON WALD, Circuit Judge.

text:
    2003 SD 63
    Kelly CLAUSEN, Claimant and Appellant, v. NORTHERN PLAINS RECYCLING, Employer, Fireman’s Fund, Insurer, Able Construction Co., Employer, Milwaukee Casualty Insurance Co., Insurer, Gil Haugan Construction Co., Employer and Appellee, Regent Insurance Company, Insurer and Appellee.
    No. 22544.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2003.
    Decided May 28, 2003.

      Brian L. Radke of Radke Law Office, Sioux Falls, South Dakota, Attorneys for claimant and appellant.
    Michael S. McKnight and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, South Dakota, Attorneys for employer, insurer and appel-lees.
   VON WALD, Circuit Judge.

[¶ 1.] Kelly Clausen appeals a circuit court order affirming a decision by the South Dakota Department of Labor denying his claim for workers’ compensation benefits. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] In January 1994, Clausen suffered the first in a series of work-related injuries to his back. Clausen was working for Northern Plains Recycling and he filed a claim with Northern’s insurer, Fireman’s Fund Insurance. Clausen received workers’ compensation benefits for his injury. In August 1998, while working for Able Construction Company, Clausen suffered a flare-up of his old injury. This time, he filed a workers’ compensation claim with Abie’s insurer, Milwaukee Insurance. Milwaukee paid for Clausen’s medical bills resulting from the injury and Clausen received no further benefits.

[¶ 3.] In May 2000, Clausen began work for Gil Haugan Construction Company. Gil Haugan is insured by Regent Insurance Company. On August 8, 2000, Clausen experienced some discomfort in his back while shoveling concrete shards on a job site. He told co-employee Dave Beckman that he was experiencing a sore back. The next morning, Clausen did not show up for work. Clausen claimed that he attempted to call his supervisor, Jim Sammons, on Jim’s cell phone sometime before 8:00 a.m. that morning. He also claimed that, after telling Sammons of the pain in his back, he was cut-off before Sammons could respond. Clausen did not try to call Sammons back and Sammons had no recollection of receiving a phone call from Clausen on that occasion.

[¶ 4.] Clausen testified that, on August 10, he called Gil Haugan’s office and spoke to Chris Biren, an engineer with no supervisory capacity. Clausen further testified that he told Biren that his back was still painful and that he would not be coming to work that day. Biren has no recollection of the conversation. Clausen also claimed that he called Gil Haugan on August 14 and spoke to the bookkeeper, Sue Peterson, telling her that he had a flare-up of his back condition. Peterson did not remember speaking to Clausen on that occasion.

[¶ 5.] On August 16, 2000, Clausen called Sammons, told him about his back and that it was possible that it had been injured while he was on the job. Gil Hau-gan contended that this was the first point at which it had any notice of the injury. Clausen then began to get treatment for his back and eventually brought a claim for workers’ compensation benefits against Gil Haugan and it’s insurer, Regent.

[¶ 6.] At the administrative hearing, Department found that Clausen failed to show that Gil Haugan or any of its representatives had notice of his injury within the three business-day period required under SDCL 62-7-10. Department also ruled that Clausen failed to demonstrate good cause for his failure to timely notify any Gil Haugan representative of this injury. The case was then appealed to the circuit court which affirmed Department’s decision. Clausen now appeals to this Court.

ISSUES

Whether Department erred when it ruled that Gil Haugan did not have actual notice of the work-related nature of the injury as required by SDCL 62-7-10.
Whether Department erred when’ it ruled that Clausen failed to establish good cause for his failure to notify Gil Haugan of his injury under SDCL 62-7-10(2).

We hold that there was no error.

STANDARD OF REVIEW

[¶ 7.] This Court reviews administrative decisions in the same manner as the circuit court. Schuck v. John Morrell & Co., 529 N.W.2d 894, 896 (S.D.1995). Factual findings are reviewed under the clearly erroneous standard. Beckman v. John Morrell & Co., 462 N.W.2d 505, 507 (S.D.1990). Using this standard, we do not search the record to reverse. See Zoss v. United Bldg. Centers, Inc., 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843. Unless we are left with a definite and firm conviction that a mistake has been made, we will uphold Department’s factual determination. Lien v. Miracle Span Corp., 456 N.W.2d 563, 565 (S.D.1990).

Department’s conclusions of law are reviewed de novo. Sudrla v. Commercial Asphalt & Materials, 465 N.W.2d 620, 622 (S.D.1991). Mixed questions of law and fact are also fully reviewable. Fiegen v. North Star, Ltd., 467 N.W.2d 748, 750 (S.D.1991).... Claimant still retains the burden of proving all facts essential to compensation. Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992).

Miller v. Lake Area Hosp., 1996 SD 89, ¶ 9, 551 N.W.2d 817, 819.

ANALYSIS AND DECISION

[¶ 8.] Clausen had the burden of proving that he provided timely notice of his injury or that Gil Haugan had actual knowledge of the injury. SDCL 62-7-10; Miller, 1996 SD 89 at ¶ 11, 551 N.W.2d at 819; Schuck, 529 N.W.2d at 898. Not only was Clausen required to prove that Gil Haugan had notice of the injury, he was also required to prove that Gil Haugan was on notice of the work-related nature of the injury. Tieszen v. John Morrell & Co., 528 N.W.2d 401, 404 (S.D.1995); Streyle v. Steiner Corp., 345 N.W.2d 865, 866 (S.D. 1984). “‘[N]otice to the employer of an injury is a condition precedent to compensation.’ ” Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 16, 606 N.W.2d 919, 923 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 8, 557 N.W.2d 764, 766). “The intention of the Workmen’s Compensation Act is that an employer be fairly appraised of an injury so that there may be an opportunity to investigate its cause and nature.” Schuck, 529 N.W.2d at 897.

[¶ 9.] SDCL 62-7-10 requires a claimant to provide written notice of an injury within three business days of the injury. According to the statute, that notice must be given directly to the employer or one of employer’s representatives. SDCL 62-7-10(1). It is undisputed that Clausen began to experience pain in his back sometime during the afternoon of August 8, 2000. However, he did not tell his supervisor, Jim Sammons, about the pain at that time.

[¶ 10.] Clausen claimed that he called Sammons’ cellular phone before 8:00 a.m. on the morning of August 9, but Sammons had no recollection of the call. Also, Sam-mons’ cellular phone records showed no incoming call before a quarter to eleven that morning. Clausen insisted that he also called Gil Haugan’s business office and spoke to Chris Biren, one of Gil Hau-gan’s engineers. However, Biren also had no recollection of any call made by Clau-sen. It was Gil Haugan’s contention that it did not have any notice of the injury or its work-related nature until an August 16 call from Clausen to Sammons. Department found Biren and Sammons’ testimony credible and we are in no position to substitute our judgment for that of Department.

[¶ 11.] Miller, supra, provides insight as to what is considered proper notice under SDCL 62-7-10. Miller involved a hospital worker who filed a workers’ compensation claim due to chronic elbow pain aggravated by work. Miller, 1996 SD 89 at ¶ 5, 551 N.W.2d at 818-819. Claimant was told by her physical therapist that the tendonitis was aggravated by work and, eventually, surgery was performed in February 1992. However, claimant did not file a claim for workers’ compensation benefits until September of that year. The issue was whether or not claimant gave timely notice of her elbow injury to her employer, Lake Area. Relying heavily on prior precedent, this Court observed that “ ‘[t]he fact that [Claimant] suffered from pain and other symptoms is not the determinative factor and will not support a determination that [Claimant] had knowledge of the existence or extent of [her] injury” with regard to the good cause issue. Miller, 1996 SD 89 at ¶ 12, 551 N.W.2d at 820 (quoting Bearshield v. City of Gregory, 278 N.W.2d 164, 166 (S.D.1979)).

[¶ 12.] In Miller, considerable reliance was placed on the following facts: claimant was told by her physical therapist some four years earlier that the pain in her elbow was work-related; claimant received prior treatment for her injuries; and, claimant testified five years earlier that she sought medical treatment for her elbow because it was aggravated at work. This Court upheld Department’s findings and held that claimant should have given Lake Area notice in 1987 of the work-related nature of her injuries. Since she did not do so, this Court held that she was precluded from recovering any workers’ compensation benefits.

[¶ 18.] This Court also adopted a reasonable person test in Miller for determining when a person should know that their injury requires attention and that the notice time limit has commenced running. The proper test is:

“The time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of [the] injury or disease.” 2B Arthur Larson, Larson’s Workmen’s Compensation Law, § 78.41(a) at 15-185-86 (1995). This reasonable person test does not place an affirmative duty on Claimant to continue seeking medical advice where further treatment is not warranted and there is no suggestion that the condition may have a work-related component.

Miller, 1996 SD 89 at ¶ 14, 551 N.W.2d at 820.

[¶ 14.] Clausen is a knowledgeable man. There is evidence in the record that he obtained his GED and spent some.time in the military. He also submitted workers’ compensation claims in the past. On two separate occasions, working for two separate entities, he submitted claims for injuries to his back. His wife testified under oath that when he got home on the night of August 8 he told her that he had hurt his back at work. Also, he testified under oath that he felt a sharp pain in his back while he was shoveling the cement shards that afternoon at work. As a reasonable person, he should have recognized the serious and compensable nature of his injury on August 8.

[¶ 15.] In its decision in Vaughn, supra, this Court had yet another chance to look at the notice issue. Vaughn involved a John Morrell worker with limited verbal and math skills who believed that her plantar fasciitis was caused by her standing at work for prolonged periods of time. Vaughn, 2000 SD 31, ¶ 3, 606 N.W.2d at 921. She sought treatment for her work-related foot injury as early as 1993, but did not notify her employer until November 1994. Id. at ¶ 6. She did not file for workers’ compensation benefits until she signed a first report of injury form in July 1995. Id. at ¶ 8, 606 N.W.2d at 922. This Court added to the reasonable person test when it stated: “Whether the claimant’s conduct is reasonable is determined ‘in the light of [her] own education and intelligence, not in the light of the standard of some hypothetical reasonable person of the kind familiar to tort law.’ ” Id. at ¶ 13 (quoting Loewen, 1997 SD 2 at ¶15, 557 N.W.2d at 768).

[¶ 16.] As noted earlier and in contrast with the claimant in Vaughn, Clausen is a knowledgeable person with experience filing workers’ compensation claims. The record indicates that he suffered a work-related injury to his back in 1994 and again in 1998. His 1998 injury was referred to as a flare-up that resulted in no new disability or impairment.

[¶ 17.] At the hearing before Department, Clausen testified that he began to experience sharp pain in his back after he got home from work and showered. However, in his answers to interrogatories and in his earlier deposition he claimed that he felt a sharp pain while he was shoveling the concrete shards. His testimony, corroborated by testimony from his wife that he told her right after work on August 8 that he hurt his back at work, was binding on him.

[¶ 18.] A claimant cannot “assert a better version of the facts than his prior testimony and ‘cannot now claim a material issue of fact which assumes a conclusion contrary to [his] own testimony.’ ” Loewen, 1997 SD 2 at ¶ 16, 557 N.W.2d at 768 (quoting Petersen v. Dacy, 1996 SD 72, ¶ 16, 550 N.W.2d 91, 95). In light of Clau-sen’s intelligence and experience, he should have recognized the seriousness and compensability of his injury on August 8. His failure to do so and to give timely notice thereafter is contrary to the law on this issue.

[¶ 19.] “SDCL 62-7-10 requires the written notification to include allegations of ‘when, where, and how the injury occurred.’ ” Vaughn, 2000 SD 31 at ¶ 23, 606 N.W.2d at 924. “To provide otherwise would be to burden employers with the responsibility of investigating every single injury their employees sustain, whether work-related or not.” Id.

[¶ 20.] Clausen argued that Gil Haugan was notified as to the work-related nature of his injury when he told a coworker that he had a sore back. In the alternative, he argued that Gil Haugan should have had adequate notification when he placed a call to his supervisor the next day or to the office on the day after. Department did not agree.

[¶ 21.] “It is true that ‘[workers’ compensation statutes are liberally construed in favor of injured employees.’ ” Vaughn, 2000 SD 31 at ¶33, 606 N.W.2d at 925 (quoting Welch v. Automotive Co., 528 N.W.2d 406, 409 (S.D.1995)). It is also true that SDCL 62-7-10 requires that “good cause for failing to give written notice within the three business-day period ... shall be liberally construed in favor of the employee.” Nonetheless, the employee did not carry his burden of proof in this particular case. Clausen’s argument that his doctors did not know if the August 8 incident was a new injury did not constitute good cause for failing to give timely notice because that position is inconsistent with Clausen’s own prior testimony to which he was bound. He “ ‘cannot now claim a material issue of fact which assumes a conclusion contrary to [his] own testimony.’ ” Loewen, 1997 SD 2 at ¶ 16, 557 N.W.2d at 768 (quoting Petersen, 1996 SD 72 at ¶ 16, 550 N.W.2d at 95).

[¶ 22.] For the reasons stated above, we hold that Department did not err in determining that Gil Haugan did not receive actual notice of the work-related injury until August 16, 2000. This was clearly outside the three business-day maximum dictated by SDCL 62-7-10. Furthermore, we hold that Department did not err in determining that Clausen failed to show evidence of good cause for failing to give notice within the three-day period.

[¶ 23.] Clausen had the burden of proving all facts essential to compensation. We agree with Department’s ruling that Clausen failed to prove these facts and the evidence in the record supports Department’s findings.

[¶ 24.] Affirmed.

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

[¶ 26.] VON WALD, Circuit Judge, for SABERS, Justice, disqualified.

      . The record indicates Clausen has worked for ten different employers in thirteen years.

      . Sammons brought his cellular phone records to Department’s hearing on this issue. The records indicated that no call was received by Sammons’ cell phone before 10:45 a.m. that morning.

      .Peterson did concede that she spoke to Clausen on August 23 and that she told Clau-sen to fill out a first report of injury form with regard to the incident of August 8, 2000.

      . It is important to note that this case only involves Gil Haugan and Regent in regard to the notice issue to be discussed. The decision in this appeal has no effect on the rights or claims of any other party to this lawsuit. We make no assumption as to the validity or invalidity as to the claims against any other party.

      . SDCL 62-7-10 reads:
      An employee who claims compensation for an injury shall immediately, or as soon thereafter as practical, notify the employer of the occurrence of the injury. Written notice of the injury shall be provided to the employer no later than three business days after its occurrence. The notice need not be in any particular form but must advise the employer of when, where, and how the injury occurred. Failure to give notice as required by the section prohibits a claim for compensation under this title unless the employee or the employee’s representative can show:
      (1) The employer or the employer's representative had actual knowledge of the injury; or
      (2) The employer was given written notice after the date of the injury and the employee had good cause for failing to give written notice within the three business-day period, which determination shall be liberally construed in favor of the employee.

      . One of Clausen's claims was that Gil Hau-gan was on notice of the injury when he told Dave Beckman that he was experiencing pain in his back on August 8, 2000. Department found that Beckman was not a foreman or representative of Gil Haugan and that Clau-sen had no good faith reason for believing that Beckman was a foreman or supervisor. The evidence shows this to be true and we agree with Department.

      . Department did not find that either of these calls occurred. Both Biren and Sammons had no recollection of the calls and Sam-mons’ telephone records showed no incoming calls to his cell phone at the time Clausen claimed he called. Department found Clau-sen not to be credible.