text:
    2007 SD 109
    STATE of South Dakota, Plaintiff and Appellee v. John H. NACHTIGALL, Defendant and Appellant.
    No. 24435.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Oct. 24, 2007.

      Lawrence E. Long, Atty. Gen., Steven R. Blair, Asst. Atty. Gen., Pierre, for plaintiff and appellee.
    David M. Hosmer, Yankton, for defendant and appellant.
   PER CURIAM.

[¶ 1.] John H. Nachtigall (Nachtigall) appeals his criminal conviction for illegally obtaining property or services with a credit card. He contends that his rights under SDCL 23A-7-2 (Rule 11(a)), and 23A-7-14 (Rule 11(f)) as well as his constitutional due process rights were violated due to an insufficient factual basis for accepting his guilty plea. We reverse and remand.

FACTS AND PROCEDURE

[¶ 2.] Between January 2, 2006 and November 21, 2006, Nachtigall worked for David Grayson (Grayson) on a contract basis. Grayson gave Nachtigall a gas credit card issued by Martin Oil, Brook-ings, South Dakota. Grayson authorized Nachtigall only to use the credit card for the purpose of purchasing gas for Gray-son’s vehicles and equipment while Nachti-gall was using them as part of his employment. Without Grayson’s permission, Nachtigall used the credit card for personal expenditures.

[¶ 3.] On December 6, 2006, the State filed a complaint against Nachtigall charging him with illegally obtaining property or services with a credit card, in violation of SDCL 22-30A-8.1, 22-30A-17, and 22-30A-18. Nachtigall was later arrested and appointed counsel. Circuit Judge Rodney J. Steele arraigned Nachtigall on an indictment, which was read in open court. The court explained to Nachtigall the elements of the crime and all his constitutional and statutory rights. Nachti-gall indicated that he understood the charge and his rights.

[¶4.] Thereafter, pursuant to a plea agreement, Nachtigall entered a plea of guilty, and the court accepted it after the following colloquy:

[The Court]: Between the 2nd of January and the 21st of November, 2006, in Brookings county, did you obtain gasoline by use of a credit card issued by Martin Oil to one David Grayson?
[Nachtigall]: Yes, I did.
[The Court]: Did you obtain that gasoline without his knowledge or consent?
[Nachtigall]: No, not completely.
[The Court]: What do you mean not completely?
[Nachtigall]: Well, I have been working for him for the last two and a half years, and he gave me the credit card to use whenever I needed his vehicles, and like I said, I have been working for him and so I don’t know — okay.
[The Court]: Did you seek his permission before each instance?
[Nachtigall]: Okay. No.
[The Court]: And the value of that gasoline exceeded a thousand dollars?
[Nachtigall]: Yes.
[The Court]: Based upon that, I will find a sufficient factual basis to receive the plea.

Circuit Judge Vincent A. Foley sentenced Nachtigall to eight years in prison with two years suspended and ordered him to pay full restitution. Nachtigall appeals, arguing that there was an insufficient factual basis to accept his plea of guilty, under SDCL 23A-7-2 (Rule 11(a)), and 23A-7-14 (Rule 11(f)).

ANALYSIS AND DECISION

[¶ 5.] Our standard of review in a challenge to the adequacy of the factual basis for accepting a guilty plea is well settled.

Before accepting a guilty plea, a court must be subjectively satisfied that a factual basis exists for the plea. The court must find a factual basis for each element of the offense. The factual basis must appear clearly on the record.

State v. Schulz, 409 N.W.2d 655, 658 (S.D.1987) (citations omitted). The factual basis may come from “anything that appears on the record.” Id. (noting “[i]t is not necessary that a defendant state the factual basis in his own words.”) (citations omitted). Moreover,

[rjeading the indictment to the defendant coupled with his admission of the acts described in it is a sufficient factual basis for a guilty plea, as long as the charge is uncomplicated, the indictment detailed and specific, and the admissions unequivocal.

Id. (citations omitted). In cases where defendants proclaim their innocence while at the same time pleading guilty, the factual basis to support such pleas must be “strong.” Gregory v. State, 325 N.W.2d 297, 299 (S.D.1982) (quoting North Carolina v. Alford, 400 U.S. 25, 38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). This type of plea has been referred to as the “Alford plea.” “The so-called Alford plea’ is nothing more than a guilty plea entered by a defendant who either: 1) maintains that he is innocent; or 2) without maintaining his innocence, ‘is unwilling or unable to admit’ that he committed ‘acts constituting the crime.’ ” United States v. Tunning, 69 F.3d 107, 110 (6thCir.1995) (citation omitted). However, “[i]f the defendant cannot or will not admit to the facts establishing the elements of the crime, the trial court may admit transcripts [of testimony], [oral testimony, other sworn statements, or tangible evidence] which will satisfy [the court] of the existence of the factual basis for the plea.” Gregory, 325 N.W.2d at 299 (quoting Spirit Track v. State, 272 N.W.2d 803, 805). In Gregory v. State, we noted a denial “of acts constituting essential elements of the offense raises further question of whether the defendant fully understood the nature of the offense charged.” Id.

[¶ 6.] “The factual basis requirement, codified at SDCL 23A-7-2, is very closely patterned after Federal Rule of Criminal Procedure 11(f). Thus, to guide our interpretation of SDCL 23A-7-2, we look to the federal courts’ interpretation of Rule 11(f).” Schulz, 409 N.W.2d at 657-58.

[¶ 7.] Nachtigall contends that the trial court accepted his guilty plea without properly finding a factual basis for each element of the offense. He submits that his responses to the court’s questioning demonstrate an equivocation illustrating his failure to understand the offense charged. In particular, Nachtigall claims that he did not understand he was being charged with illegally obtaining property exceeding one thousand dollars. He argues that the factual basis upon which the trial court accepted his guilty plea was statutorily inadequate.

[¶ 8.] Developing a factual basis on the record is essential to the plea process. In Schulz we stated:

Receiving guilty pleas is a process beset with pitfalls. The two most dangerous of these have long been recognized: coerced pleas and ignorant pleas. The first of these plainly is condemned by the Fifth Amendment’s mandate that no one be compelled in any criminal case to be a witness against himself. The second arises from the guilty plea as perhaps the supreme instance of waiver known to our system of justice, one by which all [] trial rights and safeguards are voluntarily foregone, and a defendant deliberately submits to conviction. If this is to be permitted, a decent system of justice, at a minimum, will concern itself that the admission is voluntary and intelligently made. These are core considerations, requirements that manifestly must lie at the heart of any respectable system for settling (as opposed to trying) criminal charges.

Schulz, 409 N.W.2d at 658 (citing United States v. Dayton, 604 F.2d 931 (5thCir.1979)). The factual basis requirements in SDCL 23A-7-2 (Rule 11(a)) and SDCL 23A-7-14 (Rule 11(f)) were “designed to protect these core considerations by ensuring that a guilty plea is entered voluntarily and intelligently.” Schulz, 409 N.W.2d at 658. In this case, the lack of a sufficient factual basis leads us to determine that the guilty plea was erroneously accepted. Without an adequate factual basis, the trial court cannot assure itself and this Court the guilty plea was voluntarily and intelligently entered. Schulz, 409 N.W.2d at 658.

[¶ 9.] In plea hearings, the record must demonstrate that defendants not only understand the constitutional and statutory rights they are waiving by pleading guilty, but also fully understand the charges for which they are admitting guilt. “[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Nachtigall’s responses to the court’s questions never demonstrated his understanding of the charge or how it related to the facts.

[¶ 10.] During questioning, Nachtigall revealed that some of the credit card charges were permitted by his employer. When asked if the gas was purchased without consent, Nachtigall stated, “[n]o, not completely.” When the court asked what he meant by this answer, Nachtigall said that he had permission to use the credit card for his ongoing employment, adding, “so I don’t know — okay.” The court did inquire into whether he requested permission before each use of the credit card; however, it was never established whether any express permission was required before each use. Finally, the court asked if “the value of that gasoline exceeded a thousand dollars?” Nachtigall answered in the affirmative.

[¶ 11.] The State argues that the court’s mention of “that gasoline” in its question was in reference to the illicitly obtained gas. Yet the earlier questioning was in reference to all the gas Nachtigall purchased on the credit card. Although the previous exchange related to whether he received permission before each use, the court never clarified whether its question referred to the illicitly obtained gas. There must be “a factual basis for each element of the offense. Schulz, 409 N.W.2d at 658 (citations omitted). This element, in particular, is extremely important, as it is the nucleus of the felony charge. See SDCL 22-30A-17(1). Nachtigall would only face a charge of petty theft without this element. See SDCL 22-30A-17.2 (petty theft in the first degree is when “value of the property stolen exceeds four hundred dollars but does not exceed one thousand dollars.”). The court never specifically inquired whether the illicit charges added up to over one thousand dollars, the key element of the felony charge.

[¶ 12.] A guilty plea is an admission; however, a guilty plea cannot be accepted without a proper factual basis. SDCL 23A-7-2; and 23A-7-14. In this case, the record lacks any specific evidence permitting a judge to subjectively determine a factual basis for the guilty plea. Although a court may rely on any evidence to establish a factual basis, here the court relied solely on uncertain answers to incomplete questions. Neither the State nor Nachtigall’s attorney added any facts. There was no transcript of the preliminary hearing and no police report was submitted.

[¶ 13.] While a factual basis may be gained by different means, a “conversation between the judge and the defendant is clearly the best method for establishing factual basis.” Schulz, 409 N.W.2d at 659.

It is essential that this suggested colloquy between the judge and the defendant be meaningful. Simple affirmative or negative answers or responses which merely mimic the indictment or the plea agreement cannot fully elucidate the defendant’s state of mind. For this reason the trial court should question the defendant in a manner that requires the accused to provide narrative responses. Questions concerning the setting of the crime, the precise nature of the defendant’s actions, or the motives of the defendant, for instance, will force the defendant to provide the factual basis in his own words. The court should not be satisfied with coached responses, nor allow a defendant to be unresponsive.
... [FJaetual admissions from the defendant in his own words and on the record will discourage frivolous post-conviction and appellate attacks on guilty pleas.

Id.

[¶ 14.] When a defendant equivocates while pleading guilty, the court must take extra care to ensure that the record demonstrates a clear factual basis. Although the court conducted a partial canvassing process, Nachtigall’s equivocal statements gave an inadequate factual basis for the plea. This constitutes a violation of SDCL 28A-7-2 (Rule 11(a)), and 28A-7-14 (Rule 11(f)). If a factual basis fails to meet the statutory standard, the guilty plea must be set aside and the case must be remanded for another plea hearing. See State v. Sutton, 317 N.W.2d 414, 414 (S.D.1982) (stating a guilty plea shall not be accepted on a silent record). Because the statutory violation alone requires reversal, we need not consider the remaining issue of whether Nachtigall’s due process rights were violated.

[¶ 15.] Accordingly, we reverse and remand.

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

      . SDCL 22-30A-8.1 provides:
      Any person who, by use of a credit card issued to another person, without the consent of the person to whom issued, or by use of a credit card which has been revoked or canceled or has expired, or by use of a falsified, mutilated, altered, or counterfeit credit card obtains property or services on credit, is guilty of theft.

      . The relevant portion of SDCL 22-30A-17 provides:
      Theft is grand theft, if the property stolen: (1) Exceeds one thousand dollars in value;

      . SDCL 22-30A-18 provides:
      Amounts involved in thefts, whether from the same person or several persons, committed pursuant to one scheme or course of conduct, may be aggregated in determining the degree of the offense.

      . SDCL 23A-7-2 (Rule 11(a)) provides in pertinent part:
      The court may not enter a judgment unless it is satisfied that there is a factual basis for any plea except a plea of nolo contendere.

      . SDCL 23A-7-14 (Rule 11(f)) provides:
      The court shall defer acceptance of any plea except a plea of nolo contendere until it is satisfied that there is a factual basis for the offense charged or to which the defendant pleads.

      . In exchange for Nachtigall’s guilty plea, the State agreed not to bring a habitual offender charge. Nachtigall contends that his fear, based on the coercive tactics of the prosecutor, forced him to unwittingly plead to a charge he did not understand. In light of our holding on the statutory violation, we make no determination on this claim.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2007 SD 108
    Leonard NOVAK, Personal Representative of the Estate of Lillian Novak, Plaintiff and Appellant, v. Edward S. NOVAK, Defendant and Appellee.
    No. 24348.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Oct. 24, 2007.

      George J. Nelson of Abourezk Law Firm, P.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Kenneth R. Dewell of Johnson Eiesland Law Offices, P.C., Rapid City, South Dakota, Attorneys for defendant and appel-lee.
   MEIERHENRY, Justice.

[¶ 1.] As personal representative of the estate of his mother, Lillian Novak (Lillian), Leonard Novak (Leonard) sought a declaratory judgment to determine title to 640 acres of real property. The property was transferred to his brother, Edward Novak (Edward), in 1989 pursuant to their father’s, Ernest Novak’s (Ernest), will. The transfer was conditioned on Edward satisfying three conditions subsequent. Leonard claimed the conditions were not met and sought to have Edward divested of title. He claimed that if Edward were divested of title, the land would pass by intestacy to Lillian’s estate and through Lillian’s will to Leonard and Edward, equally.

[¶ 2.] Leonard and Edward filed cross motions for summary judgment, and Edward moved for attorney fees and costs arising from Leonard’s denials and withdrawn admissions during pre-trial discovery. The circuit court granted summary judgment and attorney fees in favor of Edward. Leonard appeals, alleging that genuine issues of material fact remained as to whether Edward fulfilled the conditions of Ernest’s will. We affirm.

PACTS

[¶ 3.] On November 22, 1987, Ernest J. Novak died testate. Ernest’s will, executed on July 15, 1983, devised all personal and real property to his wife Lillian and his sons, Leonard and Edward. Ernest specifically devised 640 acres of real property to his son Edward subject to three conditions subsequent. The three conditions were: (1) that Edward pay $2,000.00 to Leonard and each member of Leonard’s family; (2) that Lillian retain the option of living in the family residence on the property during her lifetime; and (3) that Edward make annual payments to Lillian of $2,000.00 during her lifetime. Ernest’s will also contained an alternative provision if Edward failed to make the payments. Under the alternative provision, Lillian was to receive a life estate in the 640 acres. After her death, the property would pass to Edward “on the same condition” imposed by the will, which required Edward to pay Leonard and each of his family members $2,000.

[¶ 4.] Ernest’s will was probated. In the final accounting, the court determined Edward had fulfilled the first two conditions. The court specifically found: (1) that Edward made a $2,000 payment to Leonard and each member of his family for a total of $16,000.00; and (2) that Lillian had validly waived her option to live in the family residence by executing a quitclaim deed in which she transferred all her interests in the residence to Edward.

[¶ 5.] As to the third condition, the court found that Edward was still obligated to make annual payments of $2,000.00 to Lillian during her lifetime. About one year after Ernest’s death, Lillian executed a will that gave all of her property to Leonard if Ernest’s will was successfully probated. Her will provided an alternative provision if Edward had not met the conditions of Ernest’s will. Under the alternative provision, all of the property, including the 640 acres, would pass to Edward and Leonard equally.

[¶ 6.] As part of the probate of Lillian’s will, Leonard claimed that Edward had not satisfied the conditions of Ernest’s will. Leonard alleged that Edward (1) failed to make all of the annual payments to Lillian between 1989 and her death in 2002, and that Lillian had not validly released her option to live in the family residence. Leonard asserted that, because the two conditions were not met, Edward could only have retained title by making a second payment of $16,000.00 ($2,000 to Leonard and each family member) within eighteen months of Lillian’s death. Leonard further claimed that Edward’s failure to make a second payment divested Edward of title. Leonard claimed that title should have passed by intestacy to Lillian’s estate.

[¶ 7.] The circuit court granted summary judgment to Edward and granted attorney fees. The court determined that: (1) all payments to Leonard and his family were paid in full; (2) all payments to Lillian were either paid in full or waived by her before her death; and (3) title to the 640 acres of real property was discharged of any interest by Lillian, her estate, or Leonard. Leonard appeals the summary judgment and the order for assessment of attorney fees and raises the following issues:

ISSUES
(1) Whether the circuit court erred in granting summary judgment to Edward.
(2) Whether the circuit court erred in granting Edward’s motion for attorney’s fees.

STANDARD OP REVIEW

[¶ 8.] “When reviewing a grant of summary judgment, ‘we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.’ ” Kling v. Stern, 2007 SD 51, ¶5, 733 N.W.2d 615, 617. “All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party.” Hendrix v. Schulte, 2007 SD 73, ¶ 6, 736 N.W.2d 845, 847. However, the nonmoving party must “present more than [unsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact.” Burley v. Kytec Innovative Sports Equipment, Inc., 2007 SD 82, ¶ 34, 737 N.W.2d 397, 408 (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994)). Once we determine that the “material facts [are] undisputed, our review is limited to determining” whether the law was correctly applied. Schulte v. Progressive Northern Ins., Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438. “If any legal basis exists to support the circuit court’s ruling, we affirm.” Johns v. Black Hills Power, Inc., 2006 SD 85, ¶ 4, 722 N.W.2d 554, 556.

[¶ 9.] When reviewing a circuit court’s allowance or denial of attorney fees under SDCL 15-6-37, we use an abuse of discretion standard. Pearson v. O’Neal-Letcher, 2007 SD 92, ¶ 10, 738 N.W.2d 914. The determination of entitlement to expenses is within the sound discretion of the trial court. Id.

ANALYSIS

1. Whether the circuit court erred in granting summary judgment to Edward.

[¶ 10.] Leonard argues that the circuit court erred when it granted Edward’s motion for summary judgment. Specifically, Leonard asserts that the evidence, viewed in the light most favorable to the non-moving party, was insufficient to establish that Edward satisfied the conditions of Ernest’s will. Leonard does not dispute that Edward satisfied the first condition by paying $2,000 to Leonard and his family members (a total of $16,000). Leonard disputes, however, that Edward met the second condition because he did not allow Lillian to make her home in the family residence during her lifetime, and disputes that Edward met the third condition because he did not make all of the annual payments to Lillian.

[¶ 11.] By raising issues over whether Edward satisfied the conditions of Ernest’s will, Leonard is attempting to relitigate matters previously adjudicated when Ernest’s will was probated. In that final probate order, the circuit court found that Edward had paid Leonard and his family the one-time payments as required by the first condition and that Lillian validly released her option to use the family residence both orally and in writing. Thus, Leonard’s argument that Lillian’s waiver was invalid is without merit since the circuit court’s determination in the probate of Ernest’s estate is conclusive. Bollinger v. Eldredge, 524 N.W.2d 118, 122 (S.D.1994) (discussing the conclusiveness of probate proceedings when the findings are not attacked on direct appeal). Consequently, the prior determination that Lillian validly released her option to use the family residence precludes relitigation. The circuit court in this case appropriately rejected Leonard’s attempt to collaterally attack the issue in the summary judgment proceeding. We turn then to the third condition and the alternative devise provision of Ernest’s will.

[¶ 12.] Our goal “in interpreting a will is to discern the testator’s intent. If the intent is clear from the language used, that intent controls.” Estate of Klauzer, 2000 SD 7, ¶ 9, 604 N.W.2d 474, 477 (citing In re Estate of Nelson, 250 N.W.2d 286, 288 (S.D.1977)). The language of Ernest’s will clearly expressed his intent that Edward receive the property and provided an alternative in the event that Edward initially failed to meet the conditions subsequent. The will’s alternative devise provided:

The circumstances being as they are, it is my positive intention and purpose that my son, Edward, receive my real estate and make the payments that I have herein provided for; and I hereby direct as to timeliness of payment and other matters this Will be liberally construed to accomplish my herein stated purpose.
In the event my son, Edward S. No-vak, should fail to make the payments herein provided for, it is my wish and I hereby direct that the provision under which he is to receive the real estate is to fail and become inoperative, and upon such happening my wife, Lillian, is to become vested with a life estate in and to such real estate ... Upon her death and the termination of the herein created life estate, I give, devise, and bequeath the remainder interest in and to such real estate to my son, Edward S. Novak, on the same condition hereinbe-fore imposed, namely:
That he is to pay to my son, Leonard Novak, Leonard’s wife, Martha Novak, and each of Leonard and Martha’s six children ... the sum of $2,000 each (emphasis added).

[¶ 18.] The plain language of the alternative devise gave Lillian a life estate if Edward failed to make the payments required by the initial conditions. Ultimately upon Lillian’s death, the property would transfer to Edward under the same condition of paying Leonard and his family members $2,000.00 each. Thus, had Edward not made payments to Leonard and his family members nor to Lillian, Lillian would have had a life estate until her death. At that point, Edward would have received the 640 acres subject to making the one-time payments to Leonard and his family members. Since Edward had previously made those payments, title passed to Edward as part of the probate of Ernest’s will. There, the court clearly rejected the notion that the property reverted to Lillian as a life estate. The only outstanding commitments for Edward were the annual payments to Lillian.

[¶ 14.] Edward’s right to the property did not hinge on making all of the payments to Lillian. Under the provisions of Ernest’s will, even if Edward made no payments prior to Lillian’s death, Edward still was to receive the property if he made the “one-time” payments to Leonard and his family members. Edward could make the payments either within eighteen months of Ernest’s death or within eighteen months of Lillian’s death. It is undisputed that Edward had previously made the “one-time” payments within eighteen months of Ernest’s death.

[¶ 15.] Even though there appears to be a dispute about whether Edward made all of the payments to Lillian, that fact was not a material fact. In reviewing a summary judgment we must determine whether the moving party demonstrated the absence of a “genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.” Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. Leonard’s argument presupposes that failure to pay Lillian was material to whether Edward owed Leonard and his family another $16,000 in payments or was divested of the property entirely. Leonard’s supposition is misplaced in light of the language of Ernest’s will. Ernest’s will clearly provided that Edward was to receive the property by making the onetime payments to Leonard and his family. Edward made the payments after Ernest’s death and received the property. Thus, whether Edward made all of the payments to Lillian was not a genuine issue of material fact as to whether Edward should retain title to the property. The circuit court did not err in granting summary judgment to Edward.

2. Whether the circuit court abused its discretion when it awarded Edward’s motion for attorney’s fees.

[¶ 16.] Leonard contests the award of attorney fees to Edward. The circuit court determined that Leonard’s failure to admit to the requested matters during pretrial discovery was indefensible under SDCL 15-6-37(c) and caused Edward to incur additional, unnecessary expenses in providing proof. The award of attorney fees is authorized by SDCL 15 — 6—37(a)(4), (c)(2). The statute provides that a court shall order payment of reasonable attorney fees and other expenses incurred if a party fails to admit the “truth of any matter as requested under SDCL 15-6-36,” and if the requesting party “proves the genuineness of the document or the truth of the matter.” SDCL 15 — 6—37(c)(2). The statute provides as follows:

If a party fails to admit the genuineness of any document or the truth of any matter as requested under § 15-6-36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorneys’ fees. The court shall make the order unless it finds that:
(A) The request was objectionable pursuant to § 15-6-36(a); or
(B) The admission sought was of no substantial importance; or
(C) The party failing to admit had reasonable ground to believe that the party might prevail on the matter; or
(D) There was other good reason for the failure to admit.

Id.

Attorney fees are mandatory for failure to admit facts later proven by the moving party unless a statutory exception is met. See Stull v. Sparrow, 92 Cal.App.4th 860, 864-66, 112 Cal.Rptr.2d 239 (Explaining that expenses and fees are mandatory under rule 37(c) because the purpose is to expedite trial by encouraging admissions where warranted and to reimburse the costs of proof, not to penalize). Whether an award is warranted is left to the sound discretion of the circuit court, which has “broad discretion with regard to sanctions imposed [.] ” Id.

[¶ 17.] The record demonstrates that Leonard denied fifty-seven of Edward’s requests for admissions of fact. Edward proved all fifty-seven facts. Leonard denied that Edward made a number of payments to Lillian. As part of his request for admissions, Edward attached true and correct copies of his checks to Lillian. Leonard denied that the copies of the checks attached to the requests were true and correct copies. He also claimed that the endorsements on the checks did not appear to be Lillian’s even though the bank records showed that the checks had been deposited into Lillian’s account.

[¶ 18.] Leonard argues that his denials met the exceptions to SDCL 15-6-37(c) generally because: (1) some admissions requested were objectionable; (2) many admissions requested were of “no substantial importance;” (3) he would ultimately prevail on the issues; and (4) other good reasons existed, such as inability to determine the truth of the matter asserted. He makes those same general arguments in his brief on appeal. A review of the record reveals scant support for his failure to admit.

[¶ 19.] Leonard further asserts that sanctions under SDCL 15 — 6—37(c) do not apply to summary judgment proceedings since there was no trial in which the requesting party had to prove the truth of the matter requested. A plain reading of SDCL 15-6-37 indicates that no trial is required. Further, we have stated that discovery sanctions pursuant to SDCL 15-6-37 “are reviewable on appeal from a final judgment.” Aberle v. Ringhausen, 494 N.W.2d 179, 182 (S.D.1992). A grant of summary judgment on all issues is a final determination of the rights of the parties involved and is a final judgment pursuant to SDCL 15-6-54(a).

[¶ 20.] Leonard has failed to show that the court abused its discretion in awarding attorney fees pursuant to SDCL 15-6-37(c) after granting summary judgment on all issues.

[¶ 21.] Affirmed.

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


author: TUCKER, Circuit Judge.

text:
    2007 SD 107
    STATE FARM FIRE & CASUALTY COMPANY, Plaintiff and Appellee, v. Thomas G. HARBERT, Defendant and Appellant, and David M. Kalt, Defendant.
    No. 24366.
    Supreme Court of South Dakota.
    Argued April 24, 2007.
    Decided Oct. 24, 2007.

      Susan M. Sabers and William P. Fuller of Fuller & Sabers, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Lee Schoenbeck of Schoenbeck Law Office, Watertown, South Dakota, Attorney for defendant and appellant.
   TUCKER, Circuit Judge.

[¶ 1.] State Farm Fire & Casualty (State Farm) brought this declaratory judgment action to determine if coverage or a duty to defend existed in an underlying action. In that case David Kalt (Kalt) brought suit against Thomas Harbert (Harbert) for alienation of the affections of his former spouse, Peggy Kalt (Peggy). Harbert sought personal liability coverage on the underlying action from State Farm under his personal liability umbrella policy. The trial court granted summary judgment in favor of State Farm, finding no coverage and, thereby, no duty to defend. Harbert appeals.

[¶ 2.] We affirm, finding (1) an invasion of privacy claim derived from conduct leading to the dissolution of a marriage is more properly considered an alienation of affections claim; (2) alienation of affections is an intentional tort, falling within State Farm’s intentional tort exclusion in the policy; and, (3) insuring an alienation of affections cause of action for an insured is contrary to the public policy of this State.

FACTS AND PROCEDURE

[¶ 3.] Kalt and Peggy were married on February 14, 1976. In May 2000 Peggy was hired as clinic manager for the Aberdeen Association of Orthopedic Surgeons. At the clinic Peggy managed the practice of three physicians, one of whom was Har-bert. In 2001 Harbert and Peggy began engaging in an extra-marital affair while Peggy was married to Kalt. Upon discovering the affair, Kalt filed for divorce against Peggy and initiated the underlying civil action against Harbert alleging alienation of affections.

[¶ 4.] At the time of the commencement of the underlying action, Harbert was insured by a policy from State Farm. Harbert tendered the lawsuit to State Farm, asserting that State Farm must defend and indemnify Harbert under his policy. State Farm defended the underlying action pursuant to a reservation of rights and commenced a declaratory judgment action to determine if Harbert’s policy provided a duty to defend and coverage.

[¶ 5.] The policy’s coverage for personal liability provides, “[i]f you are legally obligated to pay damages for a loss, we will pay your net loss minus the retained limit.” (emphasis in original). The definition of “loss” appears in the policy endorsement, which supplements the parent policy. “Loss” is defined as:

6. “Loss” means:
a. an accident, including injurious exposure to conditions, which results in bodily injury or property damage during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one loss; or
b. the commission of an offense, or series of similar or related offenses, which result in personal injury during the policy period.

(emphasis in original). The definition of “bodily injury” and the offenses causing “personal injury” are also found in the policy endorsement:

17. “bodily injury” means physical injury, sickness, disease, emotional distress or mental injury to a person. This includes required care, loss of services and death resulting therefrom.
9. “personal injury” means injury caused by one or more of the following offenses:
a. false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution;
b. libel, slander, defamation of character or invasion of rights of privacy.

[¶ 6.] The policy provides that when the asserted claim is covered by the policy, State Farm will defend the insured in the suit, and pay the expenses incurred, costs taxed, and pre — and post-judgment interest accrued. However, the policy lists relevant exclusions to this coverage, including the intentional tort exclusion. The intentional tort exclusion specifies that State Farm will not provide coverage:

2. for bodily injury or property damage:
a. which is either expected or intended by you; or
b. to any person or property which is the result of your willful and malicious act, no matter at whom the act was directed.
16. for personal injui"y when you act with specific intent to cause or harm injury.

(emphasis in original).

[¶ 7.] State Farm and Harbert filed motions for summary judgment. As a result, Kalt amended his initial complaint against Harbert in the underlying action to include a cause of action for invasion of rights of privacy. The amended complaint alleged Kalt had been “injured in his right to privacy in that, among other things Defendant gained private and personal information about Plaintiff, his family, and his finances which has caused Plaintiff to suffer great distress of mind, body and estate and damages.”

[¶ 8.] In support of his motion for summary judgment, Harbert argued coverage existed and State Farm had a duty to defend the underlying action pursuant to (1) the personal injury coverage as an invasion of rights of privacy offense; or (2) the bodily injury coverage provision as an “accident” resulting in bodily injury. State Farm argued that no coverage existed under the policy because of the intentional tort exclusion.

[¶ 9.] The trial court granted summary judgment in favor of State Farm, finding no coverage and, thereby, no duty to defend Kalt’s suit against Harbert for alienation of affections and invasion of rights of privacy. Specifically, the trial court held that a claim for alienation of affections is an intentional tort under South Dakota law, and, as such, is not covered under the policy. In addition, the trial court found Kalt’s invasion of privacy claim against Harbert was essentially a claim for alienation of affections.

[¶ 10.] Harbert appeals from the trial court’s order granting State Farm’s motion for summary judgment. We review the following issues on appeal:

Is Kalt’s invasion of privacy claim, derived from conduct resulting in the dissolution of a marriage, more properly considered an alienation of affections claim?
Does the alienation of affections claim fall within State Farm’s intentional tort exclusion in the policy? Does public policy of South Dakota preclude insurance coverage for the intentional tort of alienation of affections?

STANDARD OF REVIEW

[¶ 11.] This matter is before the Court on appeal from a grant of summary judgment. Pursuant to South Dakota law, summary judgment “shall be rendered forthwith 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 a judgment as a matter of law.” SDCL 15 — 6—56(c). All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party and reasonable doubts should be resolved against the moving party. Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). The burden is placed on the moving party to show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. However, the 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. Butler Machinery Co. v. Morris Const. Co., 2004 SD 81, ¶ 5, 682 N.W.2d 773, 776. Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied in the lower court. Weatherwax v. Hiland Potato Chip Co., 372 N.W.2d 118, 120 (S.D.1985); Ruple v. Weinaug, 328 N.W.2d 857, 859-60 (S.D.1983).

ISSUE ONE

[¶ 12.] Is Kalt’s invasion of privacy claim, derived from conduct resulting in the dissolution of a marriage, more properly considered an alienation of affections claim?

[¶ 13.] Harbert asserts State Farm has a duty to defend Kalt’s action for invasion of rights of privacy because it is specifically covered within the policy’s definition of “personal injury.” Harbert emphasizes that because “invasion of rights of privacy” is not defined in the policy, this Court should adopt a reasonable interpretation of the policy language which includes protection for claims that an insured violated protected marital interests. We find this argument unpersuasive.

[¶ 14.] In Pickering v. Pickering, 434 N.W.2d 758, 762 (S.D.1989), this Court declined to recognize a “repackaged cause of action that already has been specifically pleaded.” We refused as a matter of pub-lie policy to recognize actions for intentional infliction of emotional distress, fraud and deceit, negligent misrepresentation, and tortious interference with a marital contract when such claims were “predicated on conduct which leads to the dissolution of a marriage.” Id. at 761. In Pickering we concluded that any wrong that occurred as a result of the defendant’s alleged fraud and deceit in the context of a marriage is not one that can be redressed in a tort action because public policy would not be served by authorizing an award of damages under the circumstances. Id. at 761-62. By definition, a civil wrong is given a remedy in the judicial system as a “tort” action for damages. However, the judicial system cannot remedy all wrongs, particularly those wrongs which are beyond any effective legal remedy and practical administration of the law. Id. at 761. For example, wrongs such as “betrayal, brutal words, and heartless disregard of feelings of others” are in themselves outrageous conduct and “to attempt to correct such wrongs or give relief from their effects ‘may do more damage than if the law leaves them alone.’ ” Id. at 761. The law of South Dakota provides a remedy for these types of claims in the form of an action against the paramour for alienation of affections. Id. In accordance with the public policy of South Dakota, any wrong which occurred as a result of the alleged privacy violation by Harbert in the context of Peggy and Kalt’s marriage is not one that can be redressed in an action for invasion of rights of privacy.

[¶ 15.] By amending his complaint to include invasion of privacy, Kalt was, in essence, attempting to repackage his alienation of affections claim as an invasion of privacy claim to create insurance coverage for Harbert in the underlying action. The privacy claim stemmed from the same underlying injury as the claim for alienation of affections: allegedly the intentionally harmful, voluntary adulterous conduct leading to the dissolution of Kalt’s marriage. Thus, it cannot be said that the privacy claim is separate or distinct from the alienation of affections claim. Kalt’s initial complaint asserted a cause of action against Harbert for alienation of the affections of his former spouse, Peggy. Under South Dakota law, Kalt’s remedy is an action for alienation of affections.

ISSUE TWO

[¶ 16.] Does the alienation of affections claim fall within State Farm’s intentional tort exclusion in the policy?

[¶ 17.] The interpretation of a contract is a question of law. State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994); Yarcheski v. Reiner, 2003 SD 108, ¶ 24, 669 N.W.2d 487, 495. “The existence of the rights and obligations of parties to an insurance contract are determined by the language of the contract, which must be construed according to the plain meaning of its terms.” Biegler v. American Family Mutual Ins. Co., 2001 SD 13, ¶ 20, 621 N.W.2d 592, 598-599. Thus, in deciphering the language of the insurance contract, the court must employ a plain meaning approach. Id.

[¶ 18.] Under South Dakota law, a liability insurer’s duty to defend extends to. any third party claim asserted against an insured that arguably falls within the policy’s coverages. If disputed, the issue of whether an insurer has a duty to defend is determined by the third party’s complaint and “other evidence of record.” North Star Mut. Ins. Co. v. Kneen, 484 N.W.2d 908, 912 (S.D.1992). The insurer bears the burden of showing it has no duty to defend the insured. Id. This burden is satisfied when the insurer shows the claim “clearly falls outside of policy coverage.” State Farm Mutual Auto. Ins. Co. v. Wertz, 540 N.W.2d 636, 638 (S.D.1995) (emphasis in original). See also City of Fort Pierre v. United Fire & Cas. Co., 463 N.W.2d 845, 847 (S.D.1990); Bayer v. Employers Reinsurance Corp., 383 N.W.2d 858, 861 (S.D.1986); Hawkeye-Security Ins. Co. v. Clifford, 366 N.W.2d 489, 492 (S.D.1985). If doubt exists as to whether the insured’s claim falls within the policy coverage after considering the complaint and record evidence, “such doubts must be resolved in favor of the insured.” City of Fort Pierre, 463 N.W.2d at 847.

[¶ 19.] The policy issued by State Farm does not provide coverage for the underlying tort action of alienation of affections. Such an intentional tort claim falls within the intentional tort exclusion of the policy and releases State Farm from a duty to defend the underlying claim against Harbert.

[¶ 20.] Under the policy language, State Farm agreed to defend and indemnify Harbert where Harbert was legally obligated to pay for a “loss.” A “loss” under the policy is defined as “an accident ... which results in bodily injury.” The policy does not define the word “accident.” The intentional tort exclusion provides that injuries “expected or intended by” Har-bert, or injuries that were the “result of [Harbert’s] willful and malicious acts” would not be covered. Kalt’s initial complaint alleged Harbert intentionally injured Kalt and deprived him “of his wife and of his wife’s aid, support, protection, comfort, society and fidelity,” and “wickedly, willfully, and maliciously sought to prejudice the mind of Peggy A. Kalt” against Kalt and “to alienate her affections.” State Farm asserts this alleged bodily injury is excluded from coverage under the “expected or intended” injury exclusion and is not the result of an “accident.” We agree.

[¶ 21.] To determine whether Kalt’s alleged bodily injury is the result of an “accident” under the policy, we must review the elements of the alienation of affections tort. There are discrepancies between early South Dakota Supreme Court decisions and those decided in recent years regarding the intent element of the alienation of affections tort. In the earlier decisions, “actual intent to alienate the affections of the spouse of another need not necessarily be shown if defendant’s conduct is inherently wrong and tends to, and does, have that effect.” Pearsall v. Colgan, 76 S.D. 241, 244, 76 N.W.2d 620, 621 (1956). See also McAlpin v. Baird, 40 S.D. 180, 166 N.W. 639, 640 (1918) (stating “[t]he allegation that the defendant debauched and carnally knew plaintiffs wife states a cause of action for damages. It is not necessary to allege an intent on defendant’s part to injure the plaintiff.”). These early cases required a relaxed general intent to alienate the affections of another’s spouse. In addition, these cases required the defendant’s conduct to “have been calculated from the outset” of the affair to cause the spouse’s loss of affections for the plaintiff. Pankratz v. Miller, 401 N.W.2d 543, 548 (S.D.1987).

[¶ 22.] In contrast, under the modern decisions of this Court, specific intent to alienate one spouse’s affections from the other spouse is required to sustain an action for alienation of affections. See Veeder v. Kennedy, 1999 SD 23, ¶ 39, n. 14, 589 N.W.2d 610, 619 (finding one who “purposefully alienates” one spouse’s affections from the other spouse is liable for the tort of alienation of affections, and stating that “[n]ot only must the actor have caused a diminution of one spouse’s affection for the other by acts, but the acts must have been done for the very purpose of accomplishing this result.”); Pankratz, 401 N.W.2d at 549 (providing “[t]he acts which lead to the loss of affection must be wrongful and intentional, calculated to entice the affections of one spouse away from the other” and stating “[t]he gravamen of an action for alienation of affections is enticement. It is based on an intentional tort, not negligence.”) (emphasis in original).

[¶ 23.] Additionally, under the modern decisions of this Court, the specific intent to alienate affections is not required to be present “from the outset” of the affair. Veeder, 1999 SD 23 at 1138, n. 13, 589 N.W.2d at 619. Rather, the specific intent to alienate one spouse’s affections from the other spouse may develop at any point during the adulterous relationship.

[¶ 24.] To clarify the elements of an alienation of affections action, we restate them here. The elements of alienation of affections are:

1. Wrongful conduct by the defendant with specific intent to alienate one spouse’s affections from the other spouse (such intent may develop at any point during the adulterous relationship);
2. Loss of affection or consortium; and
3. A causal connection between such intentional conduct and loss.

Pickering, 484 N.W.2d at 762-763; Feeder, 1999 SD 23 at ¶ 39, n. 14, 589 N.W.2d at 619.

[¶ 25.] The elements of this alienation of affections action fall within the intentional tort exclusion of the policy. Therefore, there is no coverage and no duty to defend.

[¶ 26.] After examining the elements of alienation of affections, we also consider the history of decisions from this Court construing unintended results of intentional torts in insurance policies. A line of divided decisions from this Court has created confusion in determining policy coverage for intentional tort exclusions. Some decisions have found, based on the public policy of this State, that intentional torts and their resulting injuries are not “accidents” under insurance policies, thereby releasing the insurer’s duty to defend the intentional tort claims asserted against its insured. Other decisions have found there may be a duty for an insurer to defend its insured when the insured is being sued for an intentional tort that results in an unintended injury.

[¶ 27.] The division of our recent decisions on this issue was recognized by the Eighth Circuit Court of Appeals in Pins, 476 F.3d 581 (8th Cir.2007). There, the Eighth Circuit stated,

In recent years, opinions in badly-divided decisions of the Supreme Court of South Dakota have declared that there may be a duty to defend when an intentional tort results in an unintended injury, such as when a punch in the face results in a broken ankle.... We are less confident than the district court that a majority of the Supreme Court of South Dakota has adopted this principle.

Pins, 476 F.3d at 583-84.

[¶ 28.] In Tri-State Co. of Minnesota v. Bollinger, 476 N.W.2d 697 (S.D.1991), a homeowner punched a guest in the face and an altercation ensued between the two parties. As a result, the guest suffered a broken ankle and brought a personal injury suit against the homeowner for assault and battery. The homeowner sought coverage under his homeowner’s insurance policy and tendered defense to his insurer. The homeowner’s insurer declined to defend on grounds that it had no duty to defend or indemnify insured because such intentional conduct was excluded from the policy. However, this Court found that the insurer had a duty to defend stating that it is not the intentional act of the insured which must be expected or intended for the intentional act exclusion to apply; instead, a court must consider whether the resulting injuries were intended. Id. at 701. This Court noted that breaking an ankle was not ordinarily an intended consequence of a fist fight inside a home. However, it was a question for a jury to sort out under proper instructions.

[¶ 29.] While one could argue that bodily injury of the type in Bollinger is an expected consequence of being punched, that case can be distinguished from an alienation of affections claim. Here, as in all alienation of affections claims, the gravamen of the tort is the intent to achieve the result; specifically, the intent to cause alienation of the spouse’s affections away from the other spouse.

[¶ 30.] Harbert attempts to use the Bollinger rationale to support his argument for coverage, asserting that he intended the act, but not the result. He emphasizes that although he intended to have sexual relations with Peggy, he did not intend to alienate her affections from her husband, Kalt, and thus coverage exists under the policy. We disagree with this reasoning. We find the Bollinger rationale does not apply, because the tort of alienation of affections requires specific intent to cause the resulting injury of alienating a spouse’s affections away from the other spouse.

[¶ 31.] Accordingly, an underlying action for alienation of affections cannot be supported by facts that fit within the definition of an “accident” of an insurance policy, because an alienation claim necessarily requires the specific intent to entice the affections of one spouse away from the other. In the underlying action, Kalt must prove that Harbert “expected or intended” a “loss” to Kalt from his adulterous conduct, rendering such “loss” outside the scope of an “accident.” At the heart of an alienation of affections tort is the specific intent to alienate the affections of one spouse away from the other spouse. Therefore, the resulting injury is always “expected or intended.” As a result, State Farm has no duty to defend Kalt’s alienation of affections claim because it falls within the intentional tort exclusion as an expected or intended loss and is, therefore, not covered by Harbert’s policy.

ISSUE THREE

[¶ 32.] Does the public policy of South Dakota preclude insurance coverage for the intentional tort of alienation of affections?

[¶ 33.] As a general rule, public policy prohibits extending insurance coverage to individuals who commit intentional tortious conduct. Am. Fam. Mut. Ins. Group v. Kostaneski, 2004 SD 114, ¶ 22, 688 N.W.2d 410, 415. See also Wertz, 540 N.W.2d at 640 (stating that “[p]ublic policy prohibits extending insurance coverage to an individual who intentionally harms others.”); City of Fort Pierre, 463 N.W.2d at 848-49 (quoting Ambassador Ins. Co. v. Montes, 76 N.J. 477, 483, 388 A.2d 603, 606 (1978) which states “[w]ere a person able to insure himself against economic consequences of his intentional wrongdoing, the deterrence attributable to financial responsibility would be missing.”); Bollinger, 476 N.W.2d 697 (S.D.1991) (stating that if insured, through intentional acts, consciously controls risks covered by the policy, the central concept of insurance is violated); SDCL 53-9-3 (providing that contracts which have the purpose of exempting anyone from responsibility for his own fraud, willful injury, or violation of law are against public policy).

[¶ 34.] Under South Dakota law, “public policy prohibits extending insurance coverage to an individual who intentionally harms others.” Wertz, 540 N.W.2d at 640 (holding a driver who intentionally drives a car into truck with intention of injuring passenger is not allowed to inflict deliberate harm with financial impunity). As mentioned earlier, this principle was examined by the Eighth Circuit Court of Appeals in Pins, 476 F.3d 581 (8th Cir.2007). There, the court found no insurance coverage for the intentional tort of alienation of affections under South Dakota law. The Eighth Circuit ruled in line with South Dakota’s public policy and found that because alienation of affections is an intentional tort requiring the insured to intend to cause specific injuries, no coverage existed under the policy.

[¶ 35.] Pursuant to this State’s public policy, an individual is not allowed to impute financial responsibility to his insurance company for his own intentional torts. Such responsibility stays with the insured. Here, Harbert allegedly committed a wrong by enticing Peggy’s affections away from Kalt. Harbert is attempting to shift responsibility for these actions to his insurer, State Farm. The alienation of affections is conduct that should not be encouraged by the protection of financial impunity. To permit such “affair insurance” would defeat the purpose of punishing and deterring individuals for their own tortious acts. In accordance, we hold that insuring the tort of alienation of affections is contrary to South Dakota public policy.

[¶ 36.] Affirmed.

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

[¶ 38.] TUCKER, Circuit Judge, for SABERS, Justice, disqualified.

      . Harbert purchased a State Farm Fire & Casualty personal liability umbrella policy that became effective July 7, 2001. Kalt initiated the underlying action named Kalt v. Harbert on January 14, 2004.

      . Kalt's amended complaint added a claim entitled “violation of personal rights.’’ Invasion of rights of privacy claim is specifically listed under the policy as a covered personal injury offense.

      . The trial court concluded, "[Tjhere is no coverage under the 'personal injury’ portion that would let you [Kalt] basically claim the same injuries for alienation of affections under a different name of invasion of rights to privacy.”

      .This Court will examine coverage under Harbert's umbrella policy from State Farm. The parties agree Harbert's homeowner's policy from State Farm provides no coverage for the underlying claim and is not at issue.

      . The policy’s definition of "personal injury” lists several covered intentional torts (called "offenses”) which State Farm agrees to provide personal liability insurance coverage.

      . Kalt’s initial complaint claimed, among other things, "The Defendant, intending to injure the Plaintiff and to deprive the Plaintiff of his wife and of his wife's aid, support, protection, comfort, society and fidelity toward the Plaintiff, wickedly, willfully, and maliciously sought to prejudice the mind of Peggy A. Kalt against the Plaintiff and to alienate her affection from the Plaintiff.”

      . Because we find Kalt's invasion of rights of privacy claim to be unavailable and without merit, the "personal injury” coverage analysis is not relevant and not at issue.

      . State Farm concedes that Kalt’s complaint alleges conduct resulting in "bodily injury” under the definition in the policy.

      . See Klatt v. Continental Ins. Co., 409 N.W.2d 366 (S.D.1987) (finding that the intended consequences of an intentional act are not an "accident” for purposes of insurance contract interpretation); Taylor v. Imperial Cas. Indem. Co., 82 S.D. 298, 144 N.W.2d 856 (1966); Corner Const. Co. v. United States Fidelity, 2002 SD 5, 638 N.W.2d 887; See also Pins v. State Farm Fire and Casualty Company, 476 F.3d 581 (8th Cir.2007); SDCL § 53-9-3 (providing that "[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud or willful injury to the person or property of another or from violation of law whether willful or negligent are against the policy of the law.”).

      . See Stoebner v. SD Farm Bureau Mut. Ins. Co., 1999 SD 106, ¶ 12, 598 N.W.2d 557, 559 (providing that "[m]ost, if not all, negligently inflicted injuries or damages result from intentional acts of some kind, but coverage still exists under normal [insurance] policy provisions if there was no intention to cause, by the commission of the acts, the resulting injury or damages.”); Wertz, 540 N.W.2d at 642.

      .While the instant case was pending appeal, Pins overruled the district court, which concluded State Farm had a duty to defend Pins' alienation of affections claim because Pins could have been found liable for alienation of affections even if he did not intend to break up a marriage. Pins, 476 F.3d at 584. According to the Court of Appeals, applying South Dakota law, the district court incorrectly relied upon the principle that there may be a duty to defend when an intentional tort results in an unintended injury. Id.

      . See Pins, 476 F.3d 581 (8th Cir.2007) (providing that because alienation of affections is an intentional tort requiring the insured to intend to cause specific injuries, no coverage existed under the policy).


author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Russell A. INGEBRITSON, a Minnesota Attorney, Registration No. 48860.
    No. A07-2031.
    Supreme Court of Minnesota.
    Nov. 13, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Russell A. Ingebritson committed professional misconduct warranting public discipline, namely, that respondent was convicted of a misdemeanor in United States District Court for conspiring to commit an offense against the United States in violation of 18 U.S.C. § 371 (2006), for conspiring with a co-defendant not to inform the Railroad Retirement Board of that co-defendant’s weekly purchase of feed for his wife’s quarter horse operation, and conspiring with another co-defendant not to inform the Railroad Retirement Board that he worked for respondent’s law practice, in violation of 45 U.S.C. § 231Z and of Minn. R. Prof. Conduct 8.4(b).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a public reprimand and unsupervised probation coextensive with respondent’s three-year criminal probation.

The court has independently reviewed the file and approves of the recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Russell A. Ingebritson is publicly reprimanded and is placed on unsupervised probation for a term co-extensive with respondent’s three-year criminal probation, subject to the following conditions:

(a) Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct.
(c) Respondent shall fully comply with all of the terms of his criminal probation.

Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT:

/s/ Helen M. Meyer

Associate Justice


author: CRIPEN, Judge.

text:
    SAUK CENTRE EDUCATION ASSOCIATION, et al., Relators, v. Alice SEAGREN, Commissioner, Minnesota Department of Education, Respondent.
    No. A06-2173.
    Court of Appeals of Minnesota.
    Nov. 13, 2007.
    Harley M. Ogata, Education Minnesota, St. Paul, MN, for relators.
    Lori Swanson, Attorney General, Kathryn Morrell Woodruff, Assistant Attorney General, St. Paul, MN, for respondent.

      Considered and decided by PETERSON, Presiding Judge; KLAPHAKE, Judge; and CRIPPEN, Judge.
   OPINION

CRIPEN, Judge.

Relators Sauk Centre Education Association and Independent School District No. 743 (Sauk Centre) challenge the decision of the commissioner of the Minnesota Department of Education denying their application for alternative-teacher-professional-pay-system funding under MinmStat. § 122A.413-416 (Supp.2005). Relators argue that the commissioner’s denial of their proposal for failing to adequately reform the steps and lanes salary schedule was arbitrary and capricious and unsupported by the evidence.

Because the commissioner’s interpretation of the statute is based on the clear language of the statute and is supported by substantial evidence, we affirm.

FACTS

The Minnesota Legislature enacted MinmStat. §§ 122A.413-.416 in 2005 to encourage development of educational improvement plans by offering the incentive of additional teacher pay tied to measurable performance improvement. The state provides additional funding to school districts that undertake the reforms necessary to qualify for the program known as the Q Comp program. Relators were one of a number of school districts and teacher organizations that applied for approval of their plan in order to receive the funding, which is beyond the usual state aid to schools.

To qualify for funding, the Q Comp statute requires, among other things, assessments, performance goals, accountability, professional staff development, and mentoring. Minn.Stat. § 122A.413, subd. 2. In addition, a school district must submit a restructured teacher pay system that “encourages teachers to improve their knowledge and instructional skills in order to improve student learning”; the restructured system must also promote the training, recruitment, and professional advancement of highly skilled teachers. Minn. Stat. § 122A.414, subd. 1.

The statute also identifies specific components that must be a part of a school district’s alternative professional pay plan, including descriptions of career advancement opportunities and the means to achieve advancement, and a description of the means to obtain additional compensation. In addition, pertinent to the question in this case, the plan must reform the usual “steps and lanes” salary schedule, without reducing any teacher’s compensation — basing at least 60% of the compensation increase on measurable improvements in student or teacher performance. Id. at subd. 2(b).

Drawing on the statute, the commissioner has identified five necessary elements to the alternative pay system, including the demand that standards base at least 60% of any compensation increase on measurable teacher/student performance and that an alternative professional pay schedule unhooks teacher compensation from the traditional steps and lanes progression.

Relators challenge the commissioner’s interpretation of the statutory requirements as applied to their compensation plan. In this proposal, relators retained the basic steps and lanes salary structure, but added a performance pay component. Every teacher in the district would receive $100 if students increased their average proficiency on the MCA-II standardized test in a given year. Every teacher at a school site would receive $100 if district students at the site increased their proficiency by 2%. In addition, all teachers were eligible to receive $800 if they participated in a professional learning community (PLC), which essentially meant that they had to attend staff meetings. Teachers would continue to move through the salary schedule based on years of service and the addition of education and training credits.

The commissioner denied the proposal on the rationale that relators, rather than proposing an alternative pay system, remained unduly tied to the steps and lanes compensation system. The commissioner noted that progression on the salary schedule was not changed by the addition of performance pay and that some reform to the salary schedule itself is required to meet the requirement of Minn.Stat. 122A.414, subd. 2(b). Demanding this reform in addition to meeting the 60% standard (the percent of compensation based on performance), the commissioner concluded that relators were unwilling to reform their salary schedule and denied the application.

ISSUE

Was the commissioner’s decision to reject relators’ application for alternative teacher performance pay funding an error of law or arbitrary and capricious?

ANALYSIS

Standard of Review

Agency decisions enjoy a presumption of correctness, and a reviewing court defers to the agency’s expertise and special knowledge in its field of technical knowledge, expertise, and training. In re Excess Surplus Status of Blue Cross and Blue Shield, 624 N.W.2d 264, 278 (Minn.2001). An agency decision is sustained unless it violates constitutional provisions, exceeds statutory authority, is based on an error of law, is unsupported by substantial evidence, or is arbitrary and capricious. AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 220 (Minn.App.1995), review denied (Minn. May 16, June 14, 1995). But construction of a statute is a question of law reviewed de novo by this court. Id.

The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature. Every law shall be construed, if possible, to give effect to all its provisions.
When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.

Minn.Stat. § 645.16 (2006). Relators here assert that the issue is strictly a question of law entailing interpretation of Minn. Stat. § 122A.414, subd. 2.

Administration of Plans

Relators argue that the commissioner approved twelve plans that do not immediately modify steps and lanes salary schedules, including two that do not clearly provide assurance that there will be a change in the future. Having examined those twelve proposals, we are satisfied that the record does not show that any of the twelve approvals are unconditional or that approval in the future can be expected without modification. Therefore, we do not reach relators’ contention that the commissioner’s decision is arbitrary because it is inconsistent with the approval of other plans.

Statutory Standard

In order to qualify for additional teacher compensation under the statute, a district must adopt an alternative teacher professional pay system (ATPPS). Minn.Stat. § 122A.414, subd. 2(a). The ATPPS must include “reform [of] the ‘steps and lane’ salary schedule[.]” Id. at subd. 2(b)(3). The legislative intent for establishing an ATPPS is included in the statute:

A restructured alternative teacher professional pay system is established ... to provide incentives to encourage teachers to improve their knowledge and instructional skills in order to improve student learning and for school districts ... to recruit and retain highly qualified teachers, encourage highly qualified teachers to undertake challenging assignments, and support teachers’ roles in improving students’ educational achievement.

Minn.Stat. § 122A.414, subd. 1. Legislative intent is also discernible in the statute’s emphasis on “rigorous professional development,” “teaching quality improvement,” and mentoring, and in the choice of alternative pay to encourage professional development. Minn.Stat. §§ 122A.413, subds. 1, 2; .414, subd. 1. In that context, “reform [of] the ‘steps and lanes’ salary schedule” is an important component of the legislative intent.

Relators argue that their proposal, which awards bonuses based on measurable performance standards, completely alters the usual steps and lanes salary schedule, pointing out that the plan meets the statutory standard that 60% of compensation increases are premised on performance goals. But under relators’ plan, although a teacher can earn a bonus by meeting certain performance standards, a teacher may also avoid performance goals and continue to advance through the steps and lanes salary schedule without change. Although relators’ plan changes the compensation system and meets the 60% standard, this does not mean that the commissioner is arbitrary and capricious when demanding reform of the steps and lanes structure that limits advancements without performance improvements. The statute requires reform of the salary schedule. Minn.Stat. § 122A.414, subd. 2(b). The statute contemplates that all teachers increase and improve their performance and instructional capabilities. Thus, the commissioner’s interpretation of the statute to require real reform of the steps and lanes salary schedule, rather than the mere addition of a bonus component, is not unreasonable.

DECISION

The commissioner’s rejection of relators’ Q Comp proposal because the proposal failed to reform relators’ steps and lanes salary schedule was neither arbitrary nor capricious, nor an unreasonable interpretation of the statute.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

      . 2005 Minn. Laws 1st Spec. Sess. Ch. 5, art 2, §§ 39-44.

      . The "steps and lanes” salary schedule is the norm for teacher pay in Minnesota. A teacher advances through steps based on years of teaching, ultimately reaching the highest level of pay in any one lane. In order to advance to a new lane, a teacher must add training or education, such as receiving an advanced degree or specialized training in a certain subject area.


author: HARTEN, Judge.

text:
    STATE of Minnesota, Appellant, v. Mark Robert WEBER, Respondent.
    No. A07-1218.
    Court of Appeals of Minnesota.
    Nov. 20, 2007.
    Lori Swanson, Attorney General, St. Paul, MN, and Mark A. Ostrem, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, Rochester, MN, for appellant.
    Jed J. Hammell, Rippe, Hammell & Murphy, P.L.L.P., Caledonia, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; TOUSSAINT, Chief Judge; and HARTEN, Judge.
   OPINION

HARTEN, Judge.

Appellant State of Minnesota challenges the district court’s pretrial order granting respondent’s motion to amend jury instructions on possession of a firearm by a felon to include as elements of the crime that the defendant must be discharged from sentence and from court supervision.

FACTS

In February 2005, respondent Mark Weber was sentenced for second-degree criminal sexual conduct, a crime of violence. In August 2005, while he was on probation for his February 2005 conviction, probation agents discovered a shotgun during a search of his home. He was charged with possession of a firearm by an ineligible person in violation of Minn.Stat. § 624.713, subds. 1(b) and 2 (2004).

The matter was called for jury trial in June 2007. The relevant pattern jury instruction, CRIMJIG 32.17, contained two elements of that crime: the defendant “knowingly shipped, transported, possessed or received a firearm” and “had been convicted of a crime of violence.” Respondent moved to amend the instruction to add two more elements of the crime: that the defendant had been discharged from sentence and from court supervision. The inclusion of respondent’s two elements would compel a not-guilty verdict for respondent because he was on probation for the sexual conduct crime when the gun was found. The district court granted respondent’s motion. The state appealed, and district court proceedings were stayed pending the result of the appeal.

ISSUE

Does the prohibition on the possession of firearms imposed on those convicted of a crime of violence by Minn.Stat. § 624.713, subd. 1(b) (2004), begin at conviction and last for life except for those whose prohibition ended, under a prior law, before 1 August 2003?

ANALYSIS

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Minn.Stat. § 624.713, subd. 1 (2004), provides that “[t]he lifetime prohibition on possessing ... firearms for persons convicted ... of a crime of violence ... applies only to offenders who are discharged from sentence or court supervision for a crime of violence on or after August 1, 1993.” Respondent relies on this provision to argue that, since he was not discharged from court supervision for his February 2005 conviction when the shotgun was found in August 2005, the lifetime prohibition did not yet apply to him, and he was entitled to a jury instruction to that effect.

Respondent’s reading of the statute would entitle those convicted of violent crimes to possess firearms as long as they remained incarcerated or on probation. Further, his reading presumes that the legislature intended the lifetime prohibition from possessing firearms to begin only after the discharge from sentence or court supervision. Particularly in light of the legislature’s obvious desire to restrict firearms from those convicted of violent crimes, that intention would be absurd, and we must presume that “[t]he legislature does not intend a result that is absurd .... ” Minn.Stat. § 645.17(1) (2006).

Respondent argues that the result would not be absurd because those convicted of violent crimes would already be prohibited from possessing firearms under Minn.Stat. § 624.713, subd. l(j)(l) (2004), providing that those who have “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” are ineligible to possess firearms. But this argument ignores the effect of three other statutory provisions: (1) Minn.Stat. § 624.713, subd. 2(b) (2004), providing that those convicted of a crime of violence who possess firearms are guilty of a felony and subject to 15 years’ imprisonment and/or a fine of $30,000; (2) Minn.Stat. § 624.713, subd. 2(c) (2004), providing that those convicted of a crime (other than a crime of violence) punishable by a term exceeding one year who possess firearms are guilty only of a gross misdemeanor; and (3) Minn.Stat. § 624.713, subd. 3(a) (2004), requiring a court convicting a defendant of a crime of violence to inform the defendant upon conviction that the defendant is prohibited for life from possessing firearms and that possession is a felony offense. These provisions demonstrate that the legislature did not intend to treat those convicted of violent crimes and those convicted of other felonies equally in regard to the possession of firearms, nor did it intend to treat more leniently those convicted of violent crimes by starting their prohibition only after their discharge from sentence or court supervision.

The intent of the legislature also may be ascertained by considering the former law. Minn.Stat. § 645.16(5) (2006). Those convicted of violent crimes were formerly prohibited from possessing firearms “unless ten years have elapsed since the person has been restored to civil rights or the sentence or disposition has expired, whichever occurs first, and during that time the person has not been convicted of or adjudicated for any other crime of violence.” Minn.Stat. § 624.713, subd. 1(b) (2002). The quoted language was deleted on 1 August 2003, the effective date of Minn. Stat. § 624.713, subd. 1(b) (Supp.2003), which banned for life the possession of firearms by those convicted of crimes of violence. See Laws 2003, ch. 28, art. 3 §§ 8-10. Thus, the expiration of the prohibition period changed from ten years after the defendant’s discharge to no expiration during defendant’s lifetime. The beginning of the prohibition period did not change. See Minn.Stat. § 624.713, subd. 3(a) (2002) (requiring court to notify defendant of prohibition on possessing firearms at time of conviction of crime of violence); Minn.Stat. § 624.713, subd. 3(a) (Supp. 2003) (same).

The statutory language on which appellant relies, i.e., “[t]he lifetime prohibition ... applies only to offenders who are discharged from sentence or court supervision for a crime of violence on or after August 1, 1993,” was added to accommodate those discharged prior to 1 August 1993. If, before 1 August 2003, the effective date of the lifetime prohibition, ten years had elapsed since their discharge and they were again permitted to possess firearms, that reinstatement was not revoked by the 2003 statute.

This provision was plainly intended to limit the retroactive effect of the 2003 amendment by not imposing the new lifetime prohibition on those whose ten-year prohibition had expired. See American Family Mut. Ins. Co. v. Lindsay, 500 N.W.2d 807, 810 (Minn.App.1993) (noting that retroactive application of statutes is not favored), review denied (Minn. 6 Aug. 1993). But this retroactivity provision does not reflect any legislative intent to also make discharge from the sentence the triggering event for the new lifetime prohibition. As discussed above, such a result would be absurd, and respondent has not shown any reasonable construction of the statute that supports it.

DECISION

Because we conclude that the prohibition on the possession of firearms imposed on those convicted of a crime of violence by Minn.Stat. § 624.713, subd. 1(b) (2004), begins at conviction and lasts for life except for those whose firearm prohibition ended prior to 1 August 2003, we reverse the district court’s grant of respondent’s motion to amend the jury instruction for possession of firearms by an ineligible person and remand for further proceedings.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

      . The legislature did intend to be more lenient with some groups in regard to the possession of firearms: see, e.g., Minn.Stat. § 624.713, subd. 1(h) (2004) (those convicted in another state of an offense comparable to assault in Minnesota may not possess firearms “unless three years have elapsed since the date of the conviction''); Minn.Stat. § 624.713, subd. 1 (k) (2004) (those convicted of certain gross misdemeanors may not possess firearms “unless three years have elapsed since the date of conviction”).