author: KONENKAMP, Justice. SABERS, Justice

text:
    2003 SD 84
    Bruce E. DUDLEY, Claimant and Appellant, v. James HUIZENGA, d/b/a Huizenga Trucking, Employer and Appellee, and Wausau Insurance Companies, Insurer and Appellee.
    No. 22487.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided July 16, 2003.

      Brian L. Radke, Sioux Falls, South Dakota, Attorney for claimant and appellant.
    Eric C. Schulte of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellees.
   KONENKAMP, Justice.

[¶ 1.] In this workers’ compensation proceeding, the claimant’s attorney missed a stipulated deadline for disclosing expert witnesses. He provided the disclosure eight weeks late. The Department of Labor granted the employer’s motion to strike the claimant’s experts, and, since the claimant had no case without expert evidence, the Department also granted summary judgment for the employer. Because our workers’ compensation laws and administrative rules are remedial in nature and should be liberally construed to achieve their purposes, we conclude that it was an abuse of discretion not to impose a lesser sanction before striking the claimant’s expert witnesses. We reverse and remand for further proceedings.

Background

[¶ 2.] On October 23, 1989, Bruce E. Dudley sustained a work-related injury in the course of his employment. As he drove a semi-truck on a highway near San Antonio, Texas, someone dropped a rock from a bridge when he passed underneath. The rock broke through the windshield and struck him on the left side of his face, fracturing several teeth and cutting his face. He brought a workers’ compensation claim against his employer, Huizinga Trucking, and its insurance carrier, Wau-sau Insurance Companies. He sought permanent partial disability benefits for loss of use of his left eye and for post-traumatic headaches, nerve damage, and other head injuries. In an amended petition dated June 26, 1991, Dudley alleged permanent and total disability under SDCL 62-4-6(23) for loss of use of both eyes.

[¶ 3.] On March 12, 1992, the Department ruled that “[Dudley] is entitled to reimbursement for all dental bills associated with treatment of [his] teeth injured on October 23, 1989, and that [he] is entitled to permanent and total disability benefits for life under the provisions of SDCL 62-4-6(23) and SDCL 62-4-7.” The employer appealed. The circuit court reversed the permanent disability award and remanded the claim to the Department with orders to develop a specific test “to determine the extent of [Dudley’s] ‘loss of use of his eyes’ and the extent of [his] disability....” On remand, the Department denied Dudley’s petition in an order dated November 12, 1992, ruling in part that Dudley “failed to establish permanent total disability under the new test adopted by the Department.”

[¶ 4.] Between April 1996 and June 2000, no activity occurred in Dudley’s file. His former attorney withdrew in April 1996, and a new attorney, Brian L. Radke, began representing him sometime thereafter. Counsel for the employer asked Rad-ke to submit a settlement demand in April 1997, but he did not respond. The employer moved to dismiss for failure to prosecute the case. The Department sent a letter directly to Dudley asking for his response, and Radke submitted materials opposing the motion. In an order dated August 29, 2000, the Department granted the motion, ruling that “all claims which remained open following the November 12, 1992 order, including, but not limited to, [Dudley’s] request for Cozine benefits and for ‘certain of claimant’s dental treatment,’ are hereby dismissed with prejudice.” As to Dudley’s claim for permanent and total disability, the Department ruled that “in order to reopen the issue of permanent total disability, (odd-lot doctrine) based on a change in medical condition, in accordance with SDCL 62-7-33, [Dudley] must prove said medical condition changed at some time following the November 12, 1992 order.”

[¶ 6.] In January 2001, Dudley petitioned to reopen under SDCL 62-7-33, alleging that he had experienced a substantial change in his condition because of his “need to see a psychologist on a weekly basis for seven years due to this condition.” The parties agreed to a joint preliminary report, and the Department entered a prehearing order requiring both sides to abide by various scheduling and discovery deadlines. Concerning expert witnesses, the order stated:

(d) Any expert reports that have not already been exchanged will be exchanged as soon as possible. Claimant will submit his reports and opinions by May 15, 2001, and Employer/Insurer by July 15, 2001.

[¶ 6.] Although Dudley produced medical records on May 14, 2001, he faded to submit any expert reports or opinions by May 15, 2001. Thus, there was no expert opinion evidence of record to show that Dudley had experienced a substantial change in his psychological condition. Dudley now contends that there was no specific provision for the exchange of a list of expert witnesses in the prehearing order. Nonetheless, Dudley did disclose his vocational expert, Rick Ostrander, by May 15, 2001, though he did not provide Os-trander’s report as required by the pre-hearing order.

[¶ 7.] On June 5, 2001, the employer’s attorney contacted Dudley’s counsel to schedule an independent medical exam for June 9, 2001. The employer’s counsel explained that if the date was not feasible, the employer would need an extension of time to comply with the expert disclosure deadline imposed by the Department because the next available appointment would not be until sometime in August 2001. In response, Dudley’s attorney sent a letter the next day, stating that he had been unable to contact Dudley. But the letter further advised that Dudley would “strongly oppose any amendment to the scheduling order.” As a result, the employer moved for summary judgment.

[¶ 8.] On July 11, 2001, Dudley filed an amended list of expert witnesses, naming Douglas Anderson, Dr. Alan Knutson, Gene Hagedorn, Dudley’s chiropractor, and Ostrander. In response, the employer moved to strike the claimant’s designated experts on the ground that their names were not timely submitted. Dudley requested a hearing to address the matter. Without a hearing, the Department granted both the motion to strike and the motion for summary judgment. Then the case again came to circuit court.

[¶ 9.] While Dudley appealed the Department’s summary judgment of September 2001, the employer submitted a notice of review challenging the wording of the Department’s order of a year earlier that dismissed Dudley’s prior petition for failure to prosecute. The circuit court affirmed the summary judgment, but reversed the Department’s prior order to the extent that it permitted the reopening of a permanent total disability claim based on a change in condition after the November 12, 1992 order. The court ruled that the issues did not achieve finality until the Department’s August 29, 2000 order of dismissal.

[¶ 10.] Dudley now appeals on the following questions: (1) ‘Whether the Department of Labor erred when it determined there was a deadline for naming expert witnesses.” (2) “Whether the Department of Labor erred when it imposed the sanction of not allowing Dudley to present the medical records of his treating practitioners.” (8) “Whether the circuit court erred when it reversed the Department of Labor’s ruling that allowed Dudley to reopen the issue of permanent total disability (odd-lot doctrine) if he proved he experienced a change in medical condition some time after the Department’s November 12, 1992 order.” We deem Issue 1 to be without merit and therefore decline to address it.

A. Dismissal as Sanction for Untimely Disclosure

[¶ 11.] Dudley’s attorney failed to comply with a prehearing order mandating the timely disclosure of his expert witnesses and their opinions. As a sanction, the ALJ struck the witnesses and granted summary judgment. See SDCL 15-6-37(b)(2)(B). This was the most drastic action available. See SDCL 15-6-37(b)(2)(C). Discovery rules are designed “to compel the production of evidence and to promote, rather than stifle, the truth finding process.” Magbuhat v. Kovarik, 382 N.W.2d 43, 45 (S.D.1986) (citing Chittenden & Eastman Co. v. Smith, 286 N.W.2d 314, 316 (S.D.1979)). The purpose of workers’ compensation is to provide for employees who have lost their ability to earn because of an employment-related accident, casualty, or disease. Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶ 19, 653 N.W.2d 247, 252 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 8, 575 N.W.2d 225, 229).

[¶ 12.] The Department’s administrative rules contain two provisions on sanctions for a party’s noncompliance in discovery. The first rule, ARSD 47:03:01:16, provides:

If a party or the party’s attorney fails to obey a scheduling or prehearing order, if no appearance is made on behalf of the party at a scheduling or prehearing conference, or if a party or the party’s attorney fails to participate in good faith, the Division of Labor and Management, upon motion or its own initiative, may make such orders with regard thereto that it considers just.

The second rule, ARSD 47:03:01:05.02, provides: As with statutes, administrative rules are construed together to make them harmonious and workable. Nelson v. State Bd. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991). We review an ALJ’s decision to invoke sanctions under an abuse of discretion standard. Chittenden & Eastman Co., 286 N.W.2d at 316. Under SDCL 15-6-37(b), administrative sanctions must be “just.” See FRCP 37(b); see also Shelton v. American Motors Corp., 805 F.2d 1323, 1329-30 (8thCir.1986) (citing Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S.Ct. 2099, 2106-07, 72 L.Ed.2d 492 (1982)).

If any party fails to comply with the provisions of this chapter, the Division of Labor and Management may impose sanctions upon 'such party pursuant to SDCL 15-6-37(b). However, attorney fees may be imposed only for a violation of a discovery order.

[¶ 13.] At the outset, we believe that the Department has no more leeway in disposing of cases and in exercising discretion than circuit courts have. See SDCL 1-26-18 and 19. See also Johnson v. Ford New Holland, Inc., 254 Neb. 182, 575 N.W.2d 392, 396 (1998). Considering the remedial nature of workers’ compensation, sanctions for discovery violations in administrative proceedings should have at least the same restraints as comparable sanctions for discovery violations in civil courts. An ALJ should operate within the spirit of those cases applying § 37(b), when determining the appropriate sanction for a party violating á prehearing order. See Chittenden & Eastman Co., 286 N.W.2d at 316. After all, an ALJ’s latitude in penalizing failures to comply may be broad, but it is not limitless.

[¶ 14.] Courts are reluctant to uphold dismissals merely to sanction errant attorneys. Buck v. United States Dep’t of Agric. Farmers Home Admin., 960 F.2d 603, 608 (6th Cir.1992). A dismissal should only be resorted to when the “failure to comply has been due to ... willfulness, bad faith, or any fault of petitioner.” Chittenden & Eastman Co., 286 N.W.2d at 316 (citations omitted). When considering a discovery violation, the severity of the sanction must be tempered with a consideration of the equities. Id. at 316-17. Less drastic alternatives should usually be employed before imposing the severest sanction. Judges must balance the policy of giving parties their “day in court against the policies of preventing undue delay, avoiding court congestion, and preserving respect for court procedures.” Onkka v. Herman, 1997 WL 1037762 (D.Neb.1997) (quoting Tyler v. Iowa State Trooper Badge No. 297, 158 F.R.D. 632, 637 (N.D.Iowa 1994)). In deciding the appropriate sanction to be imposed, the court should consider the purposes to be served by the sanction. Resolution Trust Corp. v. Williams, 162 F.R.D. 654, 660 (D.Kan.1995). An ALJ has a duty to keep things moving, but moving toward a fair result on the merits, if possible. As this Court has noted, the clearing of calendars and the expeditious dispatch of cases are secondary concerns. Chicago & N.W. Ry. Co. v. Bradbury, 80 S.D. 610, 612, 129 N.W.2d 540, 542 (1964).

[¶ 15.] Factors to consider when imposing sanctions for discovery violations include: (1) whether the party’s failure to cooperate in discovery was attributable to willfulness, bad faith, or the fault of the client; (2) whether the adversary was prejudiced by the party’s failure to cooperate in discovery; (3) whether there is a need for deterrence in a particular sort of noncompliance; (4) whether the party was warned that failure to cooperate could lead to dismissal; and (5) whether less drastic sanctions can be imposed before dismissal. Mut. Fed. Sav. & Loan Ass’n v. Richards & Assoc., Inc., 872 F.2d 88, 92 (4th Cir. 1989); Reg’l Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir.1988).

[¶ 16.] By failing to timely disclose experts and their reports, Dudley’s counsel clearly engaged in sanctionable conduct. In considering the equities, we apply the above factors. First, although Dudley’s attorney failed to comply with the prehearing order on expert opinions, the attorney did make an appearance on Dudley’s behalf at the prehearing conference and it appears that the attorney participated in good faith. He also submitted medical records in partial compliance with the order. Second, the employer would not be prejudiced by Dudley’s late disclosure of expert witnesses if the ALJ extended the employer’s disclosure deadline. As to the third, fourth and fifth factors, the striking of the claimant’s experts and the dismissal of the case was a harsh sanction for a late discovery disclosure: the record does not reflect whether the ALJ warned Dudley that failure to cooperate could result in dismissal or whether the ALJ considered less drastic sanctions. In light of these considerations, excluding expert evidence resulting in the dismissal of the case was an abuse of discretion. Commensurate with the purposes of workers’ compensation, a less severe sanction that permits the case to be heard on the merits would better serve justice.

[¶ 17.] In summary, the ALJ had authority to impose sanctions for failure to timely disclose; however, the sanction imposed here, which denied Dudley a hearing on the merits, was too harsh and constituted an abuse of discretion. Accordingly, the case is remanded to the Department with instructions to consider some lesser sanction, to allow Dudley’s expert evidence, and to take such other action, as it deems proper, consistent with this opinion.

B. Employer’s Notice of Review in Circuit Court

[¶ 18.] In the circuit court, the employer filed a notice of review of the Department’s August 29, 2000 order of dismissal with prejudice for failure to prosecute. This was not an interlocutory order but a final one. Neither side appealed that order within the time limit in SDCL 1-26-31. Under SDCL 1-26-36.1, an ap-pellee’s right to obtain review of a “final decision, ruling or action” pertains to any decision on which the time for appeal has not elapsed. Cf. SDCL 1-26-30.2. If we interpreted the statute otherwise, appel-lees could challenge on appeal any final rulings no matter how long ago they were entered.

[¶ 19.] Although Dudley did not raise the question of jurisdiction in response to the employer’s notice of review, we have a duty to determine whether the trial court had jurisdiction over a matter as a condition precedent to its right to decide the issues before it. Long v. Knight Constr. Co., Inc., 262 N.W.2d 207 (S.D.1978); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962). Appellate jurisdiction can never be presumed but must affirmatively appear from the record. Thus, even when the parties fail to challenge jurisdiction, this Court will, sua sponte, determine whether the circuit court had jurisdiction. Estate of Putnam, 254 N.W.2d 460 (S.D.1977); Shryock v. Mitchell Concrete Products, Inc., 87 S.D. 566, 212 N.W.2d 498 (1973); Tri-State Milling Co. v. Board of County Commrs. for Pennington County, 75 S.D. 466, 68 N.W.2d 104 (1955). Here, the circuit court did not have jurisdiction to consider the employer’s notice of review issue because the order the employer challenged was a final order and the time for appeal had expired.

[¶ 20.] Reversed and remanded.

[¶ 21.] MEIERHENRY, Justice, concurs.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, Justice, concur specially.

[¶ 23.] ZINTER, Justice, deeming himself disqualified, did not participate.

SABERS, Justice

(concurring specially).

[¶24.] I concur specially because 1) this case is distinguishable from our recent precedent in JENCO v. United Fire, 2003 SD 79, 666 N.W.2d 763 (2003), and Storm v. Durr, 2003 SD 6, 657 N.W.2d 34 (2003); and 2) the applicable statutes in this case are to be construed liberally in favor of the claimant.

(¶ 25.] Storm involved an unjustified violation of a court order which allowed the case to languish for fourteen months. Storm, 2003 SD 6 at ¶ 19, 657 N.W.2d at 39. In Storm, the plaintiffs were warned that failure to abide by the order would result in dismissal but chose to disregard the order. Storm, 2003 SD 6 at ¶ 3, 657 N.W.2d at 34. This Court found that Storm’s disregard of the order was willful.

[¶ 26.] In JENCO, the plaintiff allowed its case to languish for 30 months and did not attempt to comply with the court order until the defendant moved to dismiss. JENCO, 2003 SD 79 at ¶ 12, 666 N.W.2d at 766. Further, the court found that Jenco’s delay resulted in prejudice to the opposing party. JENCO, 2003, SD 79 at ¶ 21, 666 N.W.2d at 768. In the instant case, none of these factors are present. Claimant’s attorney made a good faith effort in a complicated case to move forward with the case and employer has shown no prejudice.

[¶ 27.] Even more important, unlike JENCO and Storm, this suit involves a claimant seeking relief under the worker’s compensation statutes. These statutes must be liberally construed in favor of the claimant. Wilcox v. City of Winner, 446 N.W.2d 772, 775 (S.D.1989) (additional citations omitted). With no showing of bad faith or willful disregard of the discovery order, the sanctions imposed by the ALJ were too severe.

[¶ 28JGILBERTSON, Chief Justice, joins this special writing.

       SDCL 15 — 6—37(b) entitled "Failure to comply with order” provides:
      (1) Sanctions by court in circuit where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the circuit in which the deposition is being taken, the failure may be considered a contempt of that court.
      (2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under subdivision 15 — 6—30(b)(6) or § 15-6-31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under § 15-6-37(a) or 15-6-35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
      (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
      (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
      (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
      (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
      (E) Where a party has failed to comply with an order under § 15-6-3 5 (a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.
      In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.


source: Caselaw Access Project

author: CALDWELL, Circuit Judge.

license: Public Domain

text:
    2003 SD 80
    Greg ROTH, Plaintiff and Appellee, v. FARNER-BOCKEN COMPANY, Defendant and Appellant.
    No. 22384.
    Supreme Court of South Dakota.
    Argued Jan. 15, 2003.
    Decided July 16, 2003.

      Gregory J. Erlandson of Bangs, McCul-len, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Jon C. Sogn, Thomas G. Fritz and Catherine M. Sabers of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for defendant and appellant.
   CALDWELL, Circuit Judge.

[¶ 1.] Greg Roth (Roth) brought claims of age discrimination and invasion of privacy against his former employer, Farner-Boeken Company (Farner). A jury returned a verdict finding in favor of Farner on Roth’s age discrimination claim and a verdict in favor of Roth on the invasion of privacy claim. It awarded Roth $25,000 in compensatory damages and $500,000 in punitive damages. Farner appeals. We affirm in part, reverse in part and remand.

FACTS AND PROCEDURE

[¶ 2.] Roth worked as a salesman for Vending Services, a separate Farner related corporation, in Sioux Falls, South Dakota from 1975 until approximately 1990. In 1990 Roth transferred as a sales manager to Farner-Boeken Centerville Company, another related corporation, located in Centerville, Iowa. While in Centerville, Roth experienced personal problems. He was drinking heavily, was charged with stalking, and was hospitalized and diagnosed with bipolar disorder. Roth also had problems with his relationships with customers and co-workers, and Farner eventually determined he could not remain in Centerville. Roth was rehired by Vending Services and was transferred to Rapid City, South Dakota to start up a new territory.

[¶ 3.] In this position, he was under the supervision of Gary Schmidt (Schmidt), whose office was located in Sioux Falls. Roth, who had joined Alcoholics Anonymous, continued to have problems with coworkers and Farner continued to receive customer complaints. Ultimately, Farner determined that it would terminate Roth. On July 12, 1996, a meeting was scheduled between Roth, Schmidt and Cy Farner, part owner of Farner, at which Farner intended to terminate Roth’s employment. Roth, who had previously had conversations with Cy Farner, in which Cy Farner indicated they were both getting too old for the business, anticipated termination and secretly tape recorded the meeting. After the meeting, in which Roth was indeed terminated, Cy Farner handed Roth an airplane ticket to Rapid City, $20 and requested that Roth return the keys to the company car.

[¶ 4.] After his termination, Roth met with Attorney Rick Johnson of Gregory, South Dakota, to discuss the possibility of an age discrimination claim against Far-ner. Roth left a package with Johnson which contained the tape-recording, a transcript of his termination meeting, a handwritten document Roth had compiled regarding his background with the company and his experiences during the last six months of employment, hand-written notes documenting phone calls to Schmidt and Cy Farner, and copies of work week records and documents recording his sales. This package was reviewed by Attorney Stephanie Pochop (Pochop) of Johnson’s office. Pochop determined that she was unable to take Roth’s case, drafted a letter advising Roth of this, and returned the package to him with the letter in a large mailing envelope. However, due to a clerical error, both the letter and the package were mailed to Roth at Vending Services’ Sioux Falls address.

[¶ 5.] Schmidt received the package and testified at trial that he opened it in the regular course of business. However, after opening the package, Schmidt testified that he realized the transcript it contained was of a recording of the termination meeting. Schmidt then photocopied the entire contents of the package, including Pochop’s letter, and forwarded the photocopies to Farner’s Vice President of Sales, Dean Onken, who forwarded them to Farner’s President, John Norgaard. Schmidt then removed the No.10 business envelope bearing Pochop’s law firm’s address from the original mailing envelope and attached it to a new mailing envelope. Over the original mailing address which listed Vending Service’s Sioux Falls address, Schmidt pasted a type-written label bearing Roth’s home address. Schmidt testified he then dropped this package in the mail to Roth.

[¶ 6.] Sometime in 1998, Vending Services and many other separate Farner related corporations combined, merging into one surviving corporation named Farner-Bocken Company. In August 1998, Roth filed a lawsuit alleging age discrimination against Farner. During the discovery process, Roth obtained his personnel file from Farner. In that file, Roth discovered copies of the documents he left with Attorney Johnson. Additionally, the file also contained a letter concerning Roth’s age discrimination claim against Farner from Attorney Johnson addressed to an attorney in West Des Moines, Iowa with a notation that a carbon copy was sent to Roth. On April 12, 2000, Roth amended his complaint to include an invasion of privacy claim.

[¶ 7.] The jury returned a verdict on behalf of Farner on Roth’s age discrimination claim, but found for Roth on his invasion of privacy claim. After the verdict was filed, Farner filed a motion for judgment n.o.v., or alternatively, motion for new trial or remittitur. These alternative motions were denied. Farner appeals.

STANDARD OF REVIEW

[¶ 8.] A trial court’s rulings on a motion for directed verdict and judgment notwithstanding the verdict are reviewed under the following standard:

A motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.
A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15 — 6—50(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, then without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdiet[.]

In re Estate of Holan, 2001 SD 6, ¶ 9, 621 N.W.2d 588, 590-91 (quoting Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460) (citation omitted).

[¶ 9.] Our standard of review on a motion for a new trial is well established:

Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury’s verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and circumstances of the particular case could reasonably have reached such a conclusion.

Biegler v. American Family Mutual Ins. Co., 2001 SD 13, ¶ 17, 621 N.W.2d 592, 598 (quoting Schuldies v. Millar, 1996 SD 120, ¶ 8, 555 N.W.2d 90, 95).

[¶ 10.] “[A] jury’s verdict should not be set aside ‘except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law.” Biegler, 2001 SD 13 at ¶ 32, 621 N.W.2d at 601, (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983)). “A verdict should only be set aside if the jury’s conclusion was unreasonable and a clear illustration of its failure to impartially apply ‘the reasoning faculty on the facts before them.’ ” Biegler, 2001 SD 13 at ¶ 32, 621 N.W.2d at 601, (quoting Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.1980)) (additional citations omitted).

ANALYSIS AND DECISION

ISSUE ONE

[¶ 11.] Whether the trial court erred in denying Farner’s motions for directed verdict and judgment notwithstanding the verdict.

A. Sufficiency of evidence supporting fraudulent concealment

[¶ 12.] At the end of Roth’s case-in-chief, and again at the end of trial, Farner moved the court for a directed verdict on Roth’s invasion of privacy claim. The court denied Farner’s motions and Roth’s invasion of privacy claim was submitted to the jury who rendered a verdict in favor of Roth. Farner then filed a motion for judgment n.o.v., or alternatively, motion for new trial or remittitur. These alternative motions were denied and judgment was entered on the jury’s verdict.

[¶ 13.] The statute of limitations on a claim of invasion of privacy is three years. See SDCL 15-2-14. However, the jury found, and the trial court agreed, that Farner fraudulently concealed its invasion of Roth’s privacy and the statute was tolled.

[¶ 14.] “Fraudulent concealment tolls the statute of limitations until the claim is discovered or might have been discovered with reasonable diligence.” Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 14, 581 N.W.2d 510, 515 (citations omitted). Fraudulent concealment applies “when actionable conduct or injury has been concealed by deceptive act or artifice.” Id. Absent a confidential or fiduciary relationship, fraudulent concealment consists of “some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action.” Id. (quoting Koenig v. Lambert, 527 N.W.2d 903, 905-06 (S.D.1995) (overruled on other grounds)).

[¶ 15.] Nothing in the record indicates a confidential or fiduciary relationship. Therefore, Roth must show 1) that Farner took affirmative steps to prevent discovery of Roth’s claim or its underlying facts; and 2) that Roth exercised diligence to discover the cause of action. See Strassburg, 1998 SD 72 at ¶ 15, 581 N.W.2d at 515.

[¶ 16.] In this case, there was testimony that the No. 10 business-size envelope bearing the law firm’s address was removed from the original mailing envelope and attached to a new plain mailing envelope. Additionally, a label bearing Roth’s home address was typed and pasted over Farner’s address on the original No. 10 envelope. There was also evidence that the law firm sent a second letter to Roth at Farner’s address, a photocopy of which was later discovered in Roth’s personnel file. This constitutes competent and substantial evidence that Farner engaged in an affirmative act or conduct designed to prevent discovery of Roth’s invasion of privacy cause of action.

[¶ 17.] Farner contends that Roth had constructive notice of the fraudulent concealment and thus failed to exercise diligence in discovering his invasion of privacy claim. Farner argues that Roth testified that he noticed the Sioux Falls post mark on the new mailing envelope when he received it, and Pochop’s letter inside the envelope still bore the address of Farner in Sioux Falls. Farner also argues that there was a gap between the time which Roth was advised by Pochop that she was returning his documents and the time Roth received the envelope posted by Far-ner. Therefore, Farner contends that Roth had notice of his invasion of privacy claim at the time it occurred and, as a result, cannot rely on Farner’s fraudulent concealment to toll the statute of limitations.

[¶ 18.] Roth, however, testified that he did not notice the Farner address on Pochop’s letter and that he was not aware that Farner had opened, read, photocopied, and disseminated his mail until Farner produced a copy of Roth’s personnel file during discovery in his age discrimination claim. Furthermore, Roth testified that he had never seen the second letter the law firm sent to Roth at the Farner address until he received the copy of his personnel file. Based on this, there was sufficient evidence by which the jury could conclude that Roth acted with diligence in discovering his invasion of privacy claim.

B. Sufficiency of evidence supporting jury’s verdict on invasion of privacy claim

[¶ 19.] To recover on an invasion of the right to privacy claim, a claimant must show an “unreasonable, unwarranted, serious and offensive intrusion upon the seclusion of another.” Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 424 (S.D.1994) (citing Baldwin v. First Nat’l Bank of Black Hills, 362 N.W.2d 85, 88 (S.D.1985)). Furthermore, “[t]he invasion must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.” Montgomery Ward v. Shape, 286 N.W.2d 806, 808 (S.D.1979) (citations omitted).

[¶ 20.] “In resolving sufficiency of evidence issues on appeal, this court should examine the record to determine only if there is competent and substantial evidence to support the verdict.” Kjerstad, 517 N.W.2d at 424 (quoting Holmes v. Wegman Oil Co., 492 N.W.2d 107, 111 (S.D.1992)). “All conflicts are resolved and all reasonable inferences are drawn in favor of the prevailing party.” Id.

[¶ 21.] Although we have not addressed an invasion of privacy claim based on the opening and reading of personal mail, other jurisdictions have found that such a claim lies in an action for invasion of privacy. See Birnbaum v. U.S., 588 F.2d 319, 326 (2d Cir.1978) (recognizing state law claim against a private person for intrusion of privacy based on opening and reading sealed mail); Vernars v. Young, 539 F.2d 966, 969 (3d Cir.1976) (recognizing cause of action and indicating private individuals have a “reasonable expectation that their personal mail will not be opened and read by unauthorized persons); and Doe v. Kohn, Nast & Graf, P.C., 866 F.Supp. 190, 195-96 (E.D.Pa.1994)(indicating “[a]n employer is not authorized to open mail addressed to a person at his workplace that appears to be personal,]” and reasonable minds could differ as to whether intrusion occurred when letters were opened, copied and retained) (citation omitted)).

[¶ 22.] In this case, there is sufficient evidence in the record indicating that reasonable minds could differ as to whether Farner had intruded upon Roth’s seclusion, and the issue was properly submitted to the jury. Schmidt testified that after he opened the envelope addressed to Roth at Farner’s business address, Schmidt realized it was from a law firm and meant for Roth, personally. Yet, Schmidt read the entire contents of the packet, made photocopies and disseminated them to his superior at Farner. Additionally, there was circumstantial evidence that a second letter from the same law firm addressed to Roth at Farner’s business address was opened, read, photocopied and disseminated at Farner.

[¶ 23.] Therefore, there was competent and substantial evidence upon which a jury could find Farner liable for invading Roth’s privacy.

ISSUE TWO

[¶24.] Whether the trial court erred in denying Farner’s motion for a new trial.

C. Sufficiency of evidence supporting compensatory damages

[¶ 25.] Farner contends that there was insufficient evidence to support an award of compensatory damages and that the award of $25,000 was excessive, arbitrary and a result of passion or prejudice and not supported by the evidence. Farner claims that the trial court erred in denying its motion for judgment n.o.v., its motion for a new trial and alternatively argues that the compensatory damage award should be remitted. When considering whether a jury verdict is sustained by the evidence:

[W]e are not to speculate or query how we would have viewed the evidence and testimony, or what verdict we would have rendered had we been the jury. The real and only question to be solved and answered is, Is there any legal evidence upon which the verdict can properly be based, and the conclusions embraced in and covered by it be fairly reached?

Biegler, 2001 SD 13 at ¶32, 621 N.W.2d at 602 (quoting Bakker v. Irvine, 519 N.W.2d 41, 49 (S.D.1994) (emphasis in original)).

[¶ 26.] Generally, “[t]he amount of damages to be awarded is a factual issue to be determined by the trier of fact.” Estate of Pamela He Crow, 494 N.W.2d 186, 192 (S.D.1992). However, “[a]n award of compensatory damages must not be the product of passion and prejudice and must be supported by the evidence.” Engels v. Ranger Bar, Inc., 2000 SD 1, ¶ 30, 604 N.W.2d 241, 247. The test for determining if the jury verdict is the product of passion or prejudice is:

The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption.

Stormo v. Strong, 469 N.W.2d 816, 826 (S.D.1991) (quoting Schuler v. City of Mobridge, 44 S.D. 488, 184 N.W. 281, 283 (1921) (citations omitted)). We review the issue on appeal under the clearly erroneous standard. He Crow, 494 N.W.2d at 192 (citation omitted).

[¶ 27.] In Kjerstad, 517 N.W.2d at 424-25 we indicated there was competent evidence to support an award for compensatory damages on an invasion of privacy claim when the record reflected evidence that the plaintiffs had suffered both physical and emotional reactions to the invasion and had incurred medical expenses. We held the evidence supported compensatory damage awards of $500 and $200 in invasion of privacy claim when plaintiffs presented evidence that defendant had observed them using the restroom. However, we did not indicate that plaintiffs bringing invasion of privacy claims were required to demonstrate they had incurred medical expenses as a result of the invasion.

[¶ 28.] Other courts that have been asked to review awards for compensatory damages in invasion of privacy claims have struggled in their attempts to measure damages. See Hill v. McKinley, 311 F.3d 899, 906-07 (8th Cir.2002)(affirming jury’s award of $2,500 in compensatory damages on invasion of privacy claim); Mitchell v. Globe International, 817 F.Supp. 72, 74-75 (W.D.Ark.1993) (remitting compensatory damage award in invasion of privacy claim on remand from Eighth Circuit Court of Appeals with directions to substantially remit award); Rohrbaugh v. Wal-Mart Stores, Inc., 212 W.Va. 358, 572 S.E.2d 881, 888 (2002) (adopting Restatement (Second) of Torts’ (1977) position on damages for invasion of privacy claim and, additionally, holding that if none of the Restatement damages are proven, nominal compensatory damages are to be awarded).

[¶ 29.] The Mitchell case involved an invasion of privacy claim based on publication of a picture of the 96-year-old plaintiff, a resident of Mountain Home, Arkansas, in a supermarket tabloid to illustrate a story about “ Taper Gal, Audrey Wiles’ in Sterling, Australia, who had become pregnant by one of her customers, a ‘reclusive millionaire’ she met on her newspaper route.’ ” Mitchell, 817 F.Supp. at 72. The Eighth Circuit Court of Appeals remanded that case for a substantial remittitur of compensatory damages after concluding that while the evidence supported a compensatory damage award, the amount awarded by the jury — $650,000—was shocking and exaggerated. Id. at 73.

[¶ 30.] In its decision remitting the compensatory damage award the federal district court believed “the Harrison, Arkansas, jury, chosen from all walks of life, was better situated to make that decision than this court[.]” It said, “This is an especially difficult task where the damages to be awarded are based on intangibles such as damage to reputation and mental suffering.” Id. at 73. Ultimately, the court remitted the compensatory damage award to $150,000, because it believed the damages suffered by plaintiff due to the defendant’s conduct were worth that much.

[¶ 31.] Additionally, in Sabrina v. Willman, 4 Neb.App. 149, 540 N.W.2d 364, 370-71 (1995), the Nebraska Court of Appeals addressed the issue of damages for a statutory invasion of privacy claim. The court indicated that its review of other jurisdictions revealed that the “gravamen of this tort is ‘the injury to the feelings of the plaintiff, and the mental anguish and distress caused thereby.’ ” Id. at 370 (quoting Fernandez v. United Acceptance Corp., 125 Ariz. 459, 462, 610 P.2d 461, 464 (Ariz.Ct.App.1980)). “Once a party has established that the defendant has intruded, the defendant is liable for damages.” Sabrina, 540 N.W.2d at 370.

[¶ 32.] In addressing invasion of privacy claims, courts have “recognized that damages in this area can be difficult to ascertain or measure by a pecuniary standard!;.]” Sabrina, 540 N.W.2d at 370 (citations omitted). Therefore, “[realizing the difficulty in determining damages, courts have found that a trier of fact is uniquely qualified to assess damages.” Id. The Nebraska court concluded that in an invasion of privacy claim “the amount of damages should almost always be in the hands of the jury.” Id. at 371.

[¶ 33.] In this case, a South Dakota jury found Farner had committed an “unreasonable, unwarranted, serious and offensive intrusion upon the seclusion of another.” See Kjerstad, 517 N.W.2d at 424. Furthermore, the jury found the invasion at issue — the opening, reading, photocopying and dissemination of Roth’s mail — was “one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.” See Shope, 286 N.W.2d at 808.

[¶ 34.] Additionally, the jury heard testimony from Roth that he felt angry, betrayed and devastated upon learning of the invasion. Roth also testified that he sought help with his feelings over the intrusion from his sponsor and friends at Alcoholic’s Anonymous. Roth also testified that one of the documents in the intercepted package was a handwritten note, created upon the advice of his attorney, which documented Roth’s experiences and feelings during his last few months of employment at Farner. Roth’s wife testified that he was very hurt upon learning of the invasion, felt deceived and could not believe that somebody would open his mail and do that. She further testified that Roth could not sleep at night and drank a lot of coffee. Upon hearing the evidence and being instructed to fix the amount of damages based on findings of the harm to Roth’s privacy interest and emotional distress suffered, the jury awarded the sum of $25,000 in compensatory damages.

[¶ 35.] Although the amount of the jury’s award in this case gives us pause, we cannot say that there was no legal evidence upon which it could be based. “[T]his Court cannot ‘reweigh the evidence or gauge the credibility of the witnesses’ when reviewing the jury’s verdict.” Sporleder v. VanLiere, 1997 SD 110, ¶ 27, 569 N.W.2d 8, 15 (quoting Andreson v. Black Hills Power & Light Co., 1997 SD 12, ¶ 8, 559 N.W.2d 886, 888 (citations omitted)). Furthermore, we cannot say the trial court, after hearing the evidence, erred in denying Farner’s motion for judgment n.o.v. or its motion for a new trial on this issue.

D. Statements of Roth’s counsel in closing argument

[¶ 36.] Farner contends that Roth’s counsel made statements in closing argument that were unsupported by the evidence and intended to inflame and prejudice the jury. As a result, Farner contends a new trial is warranted.

[¶ 87.] We recognize that “counsel are allowed wide latitude in argument and that a court should not too narrowly limit the manner and form of presentation and the inferences and conclusions to be drawn from the evidence, so long as unfair means are not employed to prejudice the jury.” Binegar v. Day, 80 S.D. 141, 151, 120 N.W.2d 521, 527 (1963). Furthermore,

A plaintiff should not be penalized for the misstatements of his counsel and the granting of a new trial should not be used to discipline counsel. An appellate court should interfere only when from an examination of the entire record, it is convinced that there has been a miscarriage of justice.

Id.

[¶ 38.] During closing argument, Roth’s attorney did make the statement, “I was admonished not to tell you that it’s not illegal to tape record conversations and so I’m not going to tell you that” after the trial court had earlier sustained an objection to a similar remark and struck a portion of the earlier statement from the record. However, this second statement was made in rebuttal, after counsel for Farner had made a statement to the effect, “he puts in his pocket a tape recorder and secretly records the final conversation ... and he then wants to have you return a verdict in his favor on invasion of privacy.”

[¶ 39.] Furthermore, while it is true that counsel for Roth characterized Farner’s conduct as evil and its employees as a pack of jackals, counsel for Farner did not object to these statements at trial. We have previously held that such objections not properly raised at trial cannot be reviewed by this Court on appeal. Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D.1989).

[¶ 40.] Finally, Roth’s counsel made a comment in closing argument regarding defense counsel and the alleged scattering of the copies of the Pochop package throughout Roth’s personnel file, to the effect “their own lawyers are in on that cover-up, and they are the ones that produced those documents to us.” The record indicates that the defense objected at the time of trial, and the trial court advised the jury to “use their own recollection of what the evidence is.” It is a well-settled premise of our system that a jury will use their reason in weighing the evidence and follow the instructions of the trial court. See State v. Holzer, 2000 SD 75, ¶ 20, 611 N.W.2d 647, 654.

[¶ 41.] Based on a review of the entire record, it cannot be said that the trial court abused its discretion in denying Far-ner’s motion for a new trial. “[T]he trial court had the benefit of hearing the same evidence as did the jury, and of observing the jury itself for indications that passion or prejudice may have influenced their verdict.” Stormo, 469 N.W.2d at 826 (citations omitted).

E. Amount of punitive damages award

[¶ 42.] Farner contends that the punitive damages awarded by the jury — $500,-000 — are excessive and the result of passion and prejudice. Farner contends the punitive damages award violates the due process clause of the United States Constitution.

[¶ 43.] We have previously indicated that, in order to overturn a jury’s award of punitive damages, “the amount ‘must be so excessive as to strike mankind, at first blush, as being, beyond all measure unreasonable and outrageous, and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption. In short, the damages must be flagrantly outrageous and extravagant!.]’ ” Leisinger v. Jacobson, 2002 SD 108, ¶ 9, 651 N.W.2d 693, 696 (quoting Flockhart v. Wyant, 467 N.W.2d 473, 479 (S.D.1991)).

[¶ 44.] Additionally, although states have discretion to impose punitive damages to punish and deter, “it is well established that there are procedural and substantive constitutional limitations on these awards.” State Farm v. Campbell, — U.S. -, 123 S.Ct. 1513, 1519, 155 L.Ed.2d 585 (2003) (additional citations omitted). “The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” Id. at 1519-20. Thus, “[p]unitive damages awards must comply with the due process clause’s ‘general concern for reasonableness.’ ” Pulla v. Amoco Oil Co., 72 F.3d 648, 658 (8th Cir.1995) (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 458, 113 S.Ct. 2711, 2720, 125 L.Ed.2d 366 (1993)(additional citation omitted)). Our standard of review is de novo. ,

[¶ 45.] “[Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a state may impose.” Campbell, - U.S. at -, 123 S.Ct. at 1520 (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 1598, 134 L.Ed.2d 809 (1996)). “To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property.” Campbell, - U.S. at -, 123 S.Ct. at 1520 (citing Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42, 111 S.Ct. 1032, 1056, 113 L.Ed.2d 1 (1991) (O’Connor, J., dissenting)).

[¶ 46.] Out of concerns that punitive damage awards may be imposed indiscriminately and may be awarded in grossly excessive amounts, the Supreme Court has developed three guideposts to assist courts in reviewing punitive damage awards:

1) the degree of reprehensibility of the defendant’s misconduct,
2) the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award, and
3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Campbell, - U.S. at -, 123 S.Ct. at 1520 (citing Gore, 517 U.S. at 575-86, 116 S.Ct. at 1599-1604). See also Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 440, 121 S.Ct. 1678, 1687, 149 L.Ed.2d 674, 689 (2001).

[¶ 47.] We have previously applied a five-factor test in determining whether punitive damages are appropriate or excessive, analyzing the amount allowed in compensatory damages, the nature and enormity of the wrong, the intent of the wrongdoer, the wrongdoer’s financial condition, and all of the circumstances attendant to the wrongdoer’s actions. See Leisinger, 2002 SD 108 at ¶ 19, 651 N.W.2d at 700. We herein incorporate our five factor analysis with the three guideposts outlined by the Supreme Court. See Campbell, - U.S. at -, 123 S.Ct. at 1520-26.

[¶ 48.] The first guidepost requires us to examine the “degree of reprehensibility of the defendant’s misconduct.” Id. at 1520 (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1599). In applying this guidepost, we consider whether: “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Campbell, - U.S. at -, 123 S.Ct. at 1521.

[¶ 49.] We have previously indicated that in examining the intent of the wrongdoer “we determine ‘the degree of reprehensibility of the defendant’s conduct,’ which is viewed as probably the most important indication of the reasonableness of the punitive damage award.” Veeder v. Kennedy, 1999 SD 23, ¶ 54, 589 N.W.2d 610, 621 (quoting Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 32, 552 N.W.2d 801, 812 {Schaffer II) (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1599)). Under this analysis we have recognized “the principle that some wrongs are more blameworthy than others.” See Schaffer II, 1996 SD 94 at ¶ 32, 552 N.W.2d at 811. “Trickery and deceit are more reprehensible than negligence.” Id. (citing Gore, 517 U.S. at 576, 116 S.Ct. at 1599) “Of a more serious nature would be those acts which result in injury to persons through ‘indifference to and reckless disregard for the health or safety of other[s].’” Veeder, 1999 SD 23 at ¶ 54, 589 N.W.2d at 621 (quoting Gore, 517 U.S. at 576, 116 S.Ct. at 1599).

[¶ 50.] In reviewing these facts as they apply to the offensiveness of Farner’s conduct, we find the Eighth Circuit case of Pulla, 72 F.3d at 660, helpful. In Pulla, a co-employee examined Pulla’s credit card records upon a belief that Pulla was abusing sick leave. The employee photocopied the records and forwarded them to his supervisor who in turn forwarded them to Human Resources where they were ultimately placed in Pulla’s personnel file. The Eighth Circuit Court of Appeals found this conduct was of limited offensiveness and ultimately reversed the punitive damages award for failing to pass constitutional muster. In finding that the trial court misapplied the offensiveness prong to the punitive damage award, the court focused on the fact that there was no evidence that the conduct reflected a company policy or practice.

[¶ 51.] In this case, the evidence indicates that Farner’s initial intrusion was not intentional. The Pochop package was opened in the ordinary course of business, it was addressed to Farner’s business address and was not addressed to Roth, personally and confidentially. After the initial inadvertent intrusion, Schmidt discovered a transcript of the termination meeting between himself, Roth and Cy Farner. He went on to read and photocopy the package and disseminated it to Farner’s vice president of sales who in turn disseminated it to Farner’s president. There was additional evidence that a letter from the law firm to an attorney in West Des Moines, Iowa concerning Roth’s age discrimination claim was received, opened and placed in Roth’s personnel file.

[¶ 52.] However, there is no evidence that the conduct reflected a company policy or practice. Farner’s actions were limited to two incidents involving mail addressed to Roth at Farner’s business address which was not marked personal and confidential. Farner’s tortious acts grew out of one employee’s conduct and his dissemination of a transcript of a tape recording of a termination meeting which had been secretly recorded and which involved that employee and the head of the company. Like the Pulla Court, we find this conduct of limited offensiveness “justifying a limited award of punitive damages.” Pulla, 72 F.3d at 661.

[¶ 53.] Furthermore, although Roth contends that Farner’s actions harmed his age discrimination suit, the majority of the items in the package, including the contents of the transcript of the termination meeting, were either already within the knowledge of Farner’s employees or would have been discoverable by Farner in that lawsuit. Additionally, we note that Roth did not appeal the trial court’s judgment on the jury verdict in favor of Farner on his age discrimination claim.

[¶ 54.] In analyzing the offensiveness of the conduct, we must look to whether the punitive damages award “jars one’s constitutional sensibilities.” Id. at 660. In this case, the harm caused to Roth was economic as opposed to physical. Farner put no one’s health or safety at risk and the evidence indicates Farner’s conduct was limited to two isolated incidents. Although Farner’s fraudulent concealment indicates it engaged in conduct of trickery and deceit, Roth was fully compensated for the damages he suffered as a result of Farner’s invasion of his privacy. See Campbell, - U.S. -, 123 S.Ct. at 1521, 155 L.Ed.2d 585 (indicating “[i]t should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.”) (citing Gore, 517 U.S. at 575, 116 S.Ct. 1589, 134 L.Ed.2d 809). “A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” Id. at 1523.

[¶ 55.] Accordingly, based on the above, we find that the first guidepost, or reprehensibility guidepost, weighs in favor of a finding that the punitive damages awarded in this case were excessive and fail to meet the due process clause’s “general concern for reasonableness.” Pulla, 72 F.3d at 658.

[¶ 56.] The second guidepost requires us to consider “the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages award.” Campbell, - U.S. at -, 123 S.Ct. at 1520 (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1601). In the past, when considering “the amount allowed in compensatory damages,” we have indicated “[t]he amount of punitive damages must bear a reasonable relationship to the compensatory damages.” Grynberg, 1997 SD 121 at ¶ 38, 573 N.W.2d at 504 (additional citation omitted). However, we have also indicated ratio comparisons are of limited value and “there is no precise mathematical ratio between compensatory and punitive damages.” Id.

[¶ 57.] Likewise, the Supreme Court has indicated “the relevant constitutional line is ‘inherently imprecise,’ rather than one ‘marked by a simple mathematical formula.’ ” Cooper, 532 U.S. at 484-35, 121 S.Ct. at 1684 (quoting United U.S. v. Bajakajian, 524 U.S. 321, 336, 118 S.Ct. 2028, 2037, 141 L.Ed.2d 314 (1998) and Gore, 517 U.S. at 582, 116 S.Ct. at 1602).

[¶ 58.] The Supreme Court recently reconfirmed this view in Campbell, - U.S. at -, 123 S.Ct. at 1524, by declining “to impose a bright-line ratio which a punitive damages award cannot exceed.” However, the Supreme Court went on to indicate that “in practice, few awards exceeding a single digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Id.

[¶ 59.] In this case, the mathematical ratio between punitive and compensatory damages is twenty to one. We have previously expressed concern of ratios expressing a smaller disparity. See Leisinger, 2002 SD 108 at ¶ 20, 651 N.W.2d at 700 (addressing 9 to 1 ratio) and Grynberg, 1997 SD 121 at ¶ 38, 573 N.W.2d at 505 (addressing 13-1/2 to 1 ratio). See also Schaffer II, 1996 SD 94 at ¶ 28, 552 N.W.2d at 810-11 (addressing 30 to 1 ratio). However, we proceed to analyze “the disparity between the harm (or potential harm) suffered by the plaintiff and the punitive damages awarded.” See Campbell, — U.S. at -, 123 S.Ct. at 1524 (indicating “[t]he precise award in any case, of course, must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff’).

[¶ 60.] In reviewing this guidepost, as it applies to the facts in this case, we again find the Pulla case helpful. 72 F.3d at 652-53. In comparing the disparity between actual and punitive damages the Pulla court indicated that “while a ‘shocking disparity’ in the ratio between an award of punitive and actual damages may suggest that the punitive damages award is unconstitutional, the existence of potential damages and/or the reprehensibility of a defendant’s conduct may overcome any such disparity.” Pulla, 72 F.3d at 659. “Moreover, not only does the presence of these factors justify a large punitive damages award, but their absence also can counsel against a large award.” Id. (emphasis added).

[¶ 61.] In finding that the trial court misapplied the harm prong to the punitive damage award, the Pulla court indicated that the potential harm inquiry could not overlook the actual events and focus on “potential victims of similar hypothetical torts.” Pulla, 72 F.3d at 659. Under this analysis, the court held that because Pulla had failed to produce any evidence that the defendant had put any other individual’s privacy at risk, “the potential harm from the search of his credit cards” could “only be analyzed as the search affected him.” Id. at 660.

[¶ 62.] The Pulla Court relied upon the United State’s Supreme Court case of TXO in analyzing the potential harm of the tortious conduct. See Pulla, 72 F.3d at 659-60. In TXO, the United State’s Supreme Court, in a plurality decision, indicated that in determining whether the punitive damage award bore a reasonable relationship to actual damages:

It is appropriate to consider the magnitude of the potential harm that the defendant’s conduct would have caused to its intended victim if the wrongful plan had succeeded, as well as the possible harm to other victims that might have resulted if similar future behavior were not deterred.

TXO, 509 U.S. at 460, 113 S.Ct. at 2722 (emphasis in original).

[¶ 63.] Furthermore in defining the possible harm to other victims, the Court quoted with approval a passage from an opinion issued by the West Virginia Court of Appeals:

For instance, a man wildly ñres a gun into a crowd. By sheer chance, no one is injured and the only damage is a $10 pair of glasses. A jury reasonably could find only $10 in compensatory damages, but thousands of dollars in punitive damages to teach a duty of care. We would allow a jury to impose substantial punitive damages in order to discourage future bad acts.

Id. at 459-60, 113 S.Ct. 2711 (quoting Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 661, 413 S.E.2d 897, 902 (1991)).

[¶ 64.] In Pulla, the Eighth Circuit Court of Appeals indicated that under this standard, “the touchstone is ,the potential harm that would have likely resulted from the dangerousness inherent in defendant’s actual conduct.” Pulla, 72 F.3d at 659 (emphasis added).

[¶ 65.] In applying this standard to the facts in this case there is no evidence that the conduct reflected a company policy or practice or that Farner put anyone else’s privacy at risk. As a result, the dangerousness inherent in Farner’s conduct, i.e., the potential harm from opening, copying and disseminating Roth’s mail, must be viewed from how these actions affected Roth, personally.

[¶ 66.] As indicated above, most of the contents of the Pochop package were either in the possession of Farner and its employees or discoverable in the age discrimination cause of action. Additionally, Roth did not appeal the judgment on the jury’s verdict for Farner on his age discrimination claim. Accordingly, we . find that there was an unlikelihood of serious potential harm and limited actual harm to Roth.

[¶ 67.] Therefore, applying the rationale of the Pulla Court, we find that in this case, the combination of the “shocking disparity” between compensatory and punitive damages awarded, combined with the lack of potential and actual harm and the low degree of reprehensibility of the defendant’s conduct, counsel against a substantial punitive damages award.

[¶ 68.] Additionally, in regard to determining if the amount awarded in punitive damages is reasonable and proportionate to the amount awarded in compensatory damages, the Supreme Court has indicated that “sanctions of double, treble, or quadruple damages” may be sufficient to meet the State’s goals of deterrence and retribution in imposing punitive damages against a tortfeasor. See Campbell, - U.S. at -, 123 S.Ct. at 1524. “When compensatory damages are substantial, then a lesser ratio, perhaps equal to compensatory damages can reach the outermost limit of the due process guarantee.” Id.

[¶ 69.] In determining that a lesser ratio between compensatory and punitive damages was warranted in Campbell, the Supreme Court noted that, based on the substantial compensatory damage award, the Campbells were completely compensated for the economic harm caused by the defendant. Id. Additionally, the Supreme Court noted that the compensatory damage award, which compensated the Camp-bells for their emotional distress, indignation, outrage and humiliation, contained a punitive element. Id.

[¶ 70.] In this case, there was a substantial compensatory damage award of $25,000. The evidence indicates that Roth suffered only minor economic injuries. Furthermore, Roth’s damages, as supported by the evidence, consisted of emotional distress, including feelings of anger, betrayal and devastation. Accordingly, not only was Roth completely compensated for his economic injuries by the large compensatory damage award, but we find also that the compensatory damages in this case contained a punitive element. See Campbell, - U.S. at -, 123 S.Ct. at 1525 (quoting Restatement (Second) of Torts § 908, Comment c, p. 466 (1977) (indicating that where “compensatory damages include an amount for emotional distress, such as humiliation or indignation ...[,] there is no clear line of demarcation between punishment and compensation and a verdict for a specified amount frequently includes elements of both”)).

[¶ 71.] Based on the above, we find that this second guidepost, or harm guidepost, indicates the punitive damages award was unreasonable and disproportionate to the potential harm and the actual harm experienced by Roth and a lower ratio between compensatory and punitive damages is warranted.

[¶ 72.] We have previously indicated that a defendant’s net worth is a guideline for assessing the amount of punitive damages. See Schaffer II, 1996 SD 94 at ¶ 36, 552 N.W.2d at 813 (citation omitted). Therefore, we have held that a defendant’s financial resources are an appropriate yardstick for determining punitive damages. Id. However, in this case, where we have determined that the reprehensibility and harm guideposts counsel in favor of a lower punitive damages award, we need not address “the wrongdoer’s financial condition” and the effect of the punitive damages award on Farner. See id., 1996 SD 94 at ¶ 37, 552 N.W.2d at 813 and Grynberg, 1997 SD 121 at ¶ 45, 573 N.W.2d at 506. “The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.” Campbell, - U.S. at -, 123 S.Ct. at 1525 (citing Gore, 517 U.S. at 585, 116 S.Ct. at 1604).

[¶ 73.] The third guidepost calls for us to analyze “the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” Campbell, - U.S. at -, 123 S.Ct. at 1520 (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1603). In the past, we have considered “whether there were other sanctions available, either civil or criminal,” when taking into consideration “all other relevant circumstances of the case.” See Veeder, 1999 SD 23 at ¶ 58, 589 N.W.2d at 622 (referencing Grynberg, 1997 SD 121 at ¶ 46, 573 N.W.2d at 507 and Schaffer II, 1996 SD 94 at ¶ 39, 552 N.W.2d at 814).

[¶ 74.] In this case, we note that the legislature has repealed the statute of the criminal code dealing with opening letters without authority. See SDCL 22-21-2, SL 1976 § 21-3. However, under federal law, knowingly and willfully obstructing the passage of mail carries a fine or imprisonment of up to six months. See 18 USCA § 1701. Additionally, some courts have held that 18 USC § 1708, which prohibits the theft of mail and provides for a fine or imprisonment of up to five years, applies to conversion of misaddressed mad. See United States v. Palmer, 864 F.2d 524, 528 (7th Cir.1988).

[¶ 75.] We conclude that both the reprehensibility and harm guideposts, as applied to the facts in this case, indicate that the punitive damages award violates the due process clause’s “general concern for reasonableness.” Pulla, 72 F.3d at 658. We recently reconfirmed our view that, “[p]unitive damages must not be so oppressive or so large as to shock the sense of fair-minded persons.” Leisinger, 2002 SD 108 at ¶ 23, 651 N.W.2d at 701 (quoting Schaffer II, 1996 SD 94 at ¶ 27, 552 N.W.2d at 810). In this case, where there was a substantial compensatory damage award containing a punitive element which fully compensated Roth for the harm caused, we find “a punitive damages award at or near the amount of compensatory damages” is justified. See Campbell, - U.S. at -, 123 S.Ct. at 1526.

[¶ 76.] Therefore, we hold that the punitive damages awarded — $500,000—was unreasonable and disproportionate to the harm caused and the wrong committed. This case is remanded for a new trial on punitive damages. In order to properly calculate a punitive damage award, the jury should be instructed in accordance with this opinion regarding the three guideposts outlined by the United States Supreme Court. See Campbell, - U.S. -, 123 S.Ct. 1513, 155 L.Ed.2d 585. See also Cooper, 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674, Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809, and Pulla, 72 F.3d 648.

F. Roth’s presentation of financial information

[¶ 77.] Because we have reversed on the issue of punitive damages, we need not address this issue.

ISSUE THREE

[¶ 78.] Whether Roth was entitled to a jury trial.

[¶ 79.] Farner contends that the invasion of privacy claim was improperly submitted to the jury. As indicated above, Roth brought the invasion of privacy claim after initially instituting a claim for age discrimination. Roth’s original complaint alleging age discrimination did not contain a request for a jury trial. In its answer to Roth’s original complaint, Farner requested a trial by jury. Roth’s amended complaint, which added the invasion of privacy claim, did not contain a request for a jury trial. Farner’s answer to the amended complaint did not contain a request for jury trial. Farner raised the issue at the pre-trial conference in September 2001 and Roth subsequently made a motion for jury trial which was granted by the trial court.

[¶ 80.] “The granting or denying of a jury trial is within the broad judicial discretion of the trial court and will not be disturbed absent a clear showing of abuse of discretion.” Fox v. Burden, 1999 SD 154, ¶ 32, 603 N.W.2d 916, 924. Additionally, SDCL 15-6-38(a) provides, “[t]he right of trial by jury as declared by article VI, section 6 of the Constitution of South Dakota or as given by a statute ... shall be preserved to the parties inviolate.” Under SDCL 15-6-39(a), “[w]hen trial by jury has been demanded as provided in § 15-6-38, the action shall be designated upon the docket as a jury action.” Finally, SDCL 15-6-39(b) provides:

Issues not demanded for trial by jury as provided in § 15-6-38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.

SDCL 15 — 6—39(b) (emphasis added).

[¶ 81.] In this case, a demand for jury trial was made in the answer to the original complaint, the case was docketed as a jury trial, and the record indicates that the parties proceeded through the pre-trial process with the understanding that the case would be tried before a jury. Based on these circumstances, we cannot say that the trial court abused its discretion in allowing the invasion of privacy claim to go to the jury.

CONCLUSION

[¶ 82.] Affirmed in part, reversed in part and remanded.

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

[¶ 84.] CALDWELL, Circuit Judge, for SABERS, Justice, disqualified.

      . Roth had previously worked with Schmidt in Sioux Falls. Roth testified that sometime after Schmidt began working for Farner in 1980, Roth and Schmidt were drinking quite a bit at a party at Roth's home and the two had an altercation.

      . Roth requested a copy of his personnel file soon after his termination and was told it did not exist.

      . The Restatement (Second) of Torts (1977) provides that a plaintiff who has established a cause of action for invasion, of privacy is entitled to recover damages for (a) the harm to his interest in privacy resulting from the invasion; (b) his mental distress proved to have been suffered if it is of a kind that normally results from such invasion; and (c) special damage of which the invasion is a legal cause. Rohrbaugh, 572 S.E.2d at 887(indicating in a footnote that the majority of courts addressing the issue have adopted the Restatement's position on damages for an invasion of privacy claim).

      . In Leisinger, we applied an abuse of discretion standard because there was no claim that the award violated the Constitution. 2002 SD 108 at ¶ 9, 651 N.W.2d at 696. In this case, Farner contends the award violates the due process clause, therefore the standard of review is de novo See Cooper Indus., Inc. v. Leathennan Tool Group, Inc., 532 U.S. 424, 435-36, 121 S.Ct. 1678, 1685-86, 149 L.Ed.2d 674 (2001) (indicating "the question whether a fine is constitutionally excessive calls for application of a constitutional standard to the facts of particular case, and in this context de novo review of that question is appropriate”).


author: KONENKAMP, Justice.

text:
    2003 SD 89
    LoiS BAUN, Jerry Baun and Daniel Baun, Petitioners and Appellants, v. ESTATE OF Lila KRAMLICH and Evelyn M. Nelson, Trustee of the Lila Kramlich Living Trust, Respondents and Appellees.
    No. 22379.
    Supreme Court of South Dakota.
    Argued March 24, 2003.
    Decided July 23, 2003.

      H.I. King of Tonner, Tobin & King, Aberdeen, South Dakota, Attorneys for petitioners and appellants.
    Kennith L. Gosch of Bantz, Gosch, Cremer, Peterson & Sommers, Aberdeen, South Dakota, Attorneys for respondents and appellees.
   KONENKAMP, Justice.

[¶ 1.] This is an appeal brought by the unsuccessful contestants to the will and trust of Lila Kramlich. In trial, the contestants alleged that Lila (1) was under undue influence; (2) was not of sound mind when she executed the documents; and (3) omitted the contestants from her trust and will by mistake. The trial court held that Lila was competent when she signed the instruments. Because we conclude that the-court was not clearly erroneous, we affirm.

Background

[¶ 2.] Lila Kramlich was born on March 28, 1918. She had two siblings, a brother, Maurice Schultz, and a sister, Lois Baun. While Lila had a warm relationship with Maurice, she purportedly bore hard feelings toward Lois. Lila came of working age during the Great Depression. When she was still quite young, she had to leave home to earn her own living. According to some family members, Lila resented that she had to go to work while her younger sister, Lois, obtained her education.

[¶ 3.] Lila married Jacob Kramlich in 1962, when she was forty-four. They had no children, but Jacob had two children from a prior marriage: Otto Kramlich and Elizabeth (Kramlich) Swanson. In 1976 Jacob passed away. In 1977, Otto, Lila’s stepson, died. Lila’s parents both died in 1981, and her brother, Maurice, died in 1990.

[¶ 4.] Lila was a businessperson. She lived in Eureka, South Dakota, most of her adult life. She owned drug stores in Eureka and Leola. Her brother, Maurice, was a farmer. He lived on the family farm near Revillo, South Dakota. Lila’s sister, Lois, resided in Arizona, where she has lived for many years. Lila maintained a close relationship with her brother and his family. After Maurice’s death, she continued a close relationship with his wife, Doreen Schultz, and her children, Quentin, Brad, and Nancy.

[¶ 5.] As the years passed, the division between Lila and Lois widened. They seldom 'saw each other and Lila almost never saw Lois’s children or grandchild. Friction worsened from their joint ownership of farmland their parents bequeathed to them in Grant County. As tenants in common, the sisters became openly antagonistic over the renting of this land. In 1997, to end the difficulty, Lila deeded her interest to Maurice’s sons, Quentin and Brad.

[¶ 6.] Lois believes that Lila intentionally “dumped” her children, Gerald and Edward Baun, and excluded her grandchild, Daniel, to torment her. At trial, Lois testified that initially she felt that Quentin and Brad should have the opportunity to own all the Grant County land, but she would no longer agree to sell them her interest “due to [Lila’s] manipulations and attitude.” Lois feels that Quentin and Brad should sell their interest in the land to her for one-half the value of their interest, to “prevent Lila from having a complete win with her cruel action” against Lois. Despite these conflicts between the sisters, over the years Lila nonetheless executed several wills bequeathing her property to the sons and daughters of both her brother and sister.

[¶ 7.] In 1996, Lila began to experience health problems that required her to have dialysis. In 1997, she consulted her attorney, Max Gruenwald, about making some changes in her bequests. In April or May of 1998, she sent hand written instructions to Gruenwald to create a new pour over will and trust, effectively cutting out Lois’s children as beneficiaries. After two telephone conversations with Lila on May 28, 1998, concerning the details, Gruenwald drafted her new will and trust.

[¶ 8.] On June 6, 1998, Lila passed out at her home and was taken to the Eureka Hospital. The problem was caused by the clotting of her dialysis graft. Because of her need for dialysis, Lila was transferred to MedCenter One Hospital in Bismarck, North Dakota, under the care of Dr. Abel Tello. On June 12, 1998, Lila was diagnosed with a stroke. Although she suffered some cognitive deficits as a result, with treatment and rehabilitation her condition improved enough that she was transferred from the acute unit to the sub-acute unit (rehabilitation unit) on June 17, 1998. Significant to the later court contest, during the time of Lila’s stay at Med-Center, the nurses would routinely ask her simple orientation questions. Many of the nursing notes recorded that she was disoriented and confused. By July 15, 1998, Lila’s condition had improved to the point that she was discharged from the hospital to an assisted living home.

[¶ 9.] According to Dr. Tello, Lila’s condition improved following her stroke. Still, she had good days and bad days, times when she was lucid and times when she was not. Her bad days occurred when she had dialysis. Lila underwent dialysis on July 13 and July 15, but not on July 14, the day she executed her will and trust. Dr. Tello recommended that Lila be transferred to assisted living because of her stroke and because he did not believe she should be traveling from Eureka to Bismarck every other day for dialysis. In deposition testimony, Dr. Tello was unable to offer an opinion on Lila’s competency on July 14. He was not there on that day and his notes did not record her cognitive functioning during that time. In his opinion, the best people to testify to Lila’s competency on July 14,1998, would be those who saw her, like Marvel Harter. Dr. Tello believed that there was no medical reason to conclude that Lila would not be able to discuss the contents of her will with Delores Sieler and to know her family and the money and property she owned.

[¶ 10.] When Lila broke her arm in 1994, her good friend and neighbor, Delores Sieler, began to assist her with housework. In 1996, Sieler traveled with Lila to Bismarck for her dialysis. While Lila was hospitalized in Bismarck, Lila’s neighbor, Kenneth Serr, cared for Lila’s property. Lila wanted Sieler to be in charge of her property, so she contacted Gruenwald and had him prepare a durable power of attorney, naming Sieler as her attorney-in-fact. On June 29, 1998, Lila signed the power of attorney in Bismarck.

[¶ 11.] On June 30, 1998, Gruenwald mailed Lila a will and living trust drafted consistent with her written instructions and his conversations with her on May 28, 1998. The letter was sent to Lila’s Eureka address and was eventually taken by Sieler to Lila in Bismarck on July 13, 1998. On the day that the will and trust were signed, July 14, Gruenwald had three telephone conversations with Lila. From those conversations, Gruenwald concluded that she knew what the will and trust were, knew that she requested them, and knew that she had to transfer assets to the trust to make it effective. Gruenwald believed Lila was “in good mental condition and was competent to sign legal documents, including a will.”

[¶ 12.] Gruenwald asked Marvel Har-ter, Lila’s social worker, to coordinate the signing of Lila’s will and trust. On July 14, 1998, Harter noticed a large envelope from Gruenwald in Lila’s room. The envelope had been opened. Harter read the enclosed letter of instruction from Gruen-wald. After she read the will and trust to Lila and Lila indicated that they were fine and did not want to make any changes, Harter arranged for another witness and a notary public to come to Lila’s room. Then the will and trust were executed according to Gruenwald’s written instructions. The documents were signed around 1:00 or 2:00 p.m. Other than the witnesses and the notary, no one else was present when Lila signed these documents.

[¶ 13.] The Trust allowed beneficiaries to borrow from the trust but required that the funds be paid back over a number of years. Gruenwald did not know how many years Lila wanted to allow, so he left the number of years blank. Lila chose four years and in her own handwriting inserted the number four in the trust document. She also dated and signed both the will and the trust.

[¶ 14.] Harter testified that MedCen-ter’s policy was to consult with a psychiatrist if there were any questions of competency before they would allow a patient to sign a durable power of attorney. No such consultation was requested for Lila before she signed her power of attorney, will, or trust. After visiting with Lila, Harter believed that Lila knew and understood that she was signing her will and trust.

[¶ 15.] On July 15, 1998, when Lila was discharged from the hospital and admitted to The Chateau, an assisted living home, she noticed that her admission form incorrectly listed her marital status as single. She crossed this out and wrote “widow.” She then signed and dated the form. On that same day, she was required to sign a release allowing her medical records to be sent from the hospital to the assisted living home. A nurse testified that the hospital did not allow patients to sign releases of medical information unless the administration believed that the patient was competent.

[¶ 16.] Lila’s Chateau admission records show that she did well. She was alert, oriented to place and person, tried different interests, socialized with other residents and staff, and enjoyed bingo and Bible study. Between July 15 and November 3, 1998, Lila and Sieler had several conversations about her trust and will. During these conversations, Lila would exclaim, “When they find out what I did, the dust will fly.” Lila also told Sieler that “She left $10,000 to the Reformed Church and $5000 to SPURS.” After her stroke, Lila asked Sieler whether she was taking care of her property. She reviewed bills with Sieler, instructing her what to pay and what not to pay. For instance, Lila told Sieler not to continue some charitable giving. On August 3, 1998, Lila’s sister-in-law, Doreen visited her. At that time, Lila recognized Doreen and was able to converse with her about family and friends.

[¶ 17.] Dr. Tello referred Lila to Dr. Brown, a neuropsychologist at the Q & R Clinic to determine the amount of damage caused by the stroke. Brown diagnosed her with severe dementia on August 20, 1998. Earlier on that day, however, Lila had had renal dialysis beginning at 10:50 a.m. and ending at 1:50 p.m. Nursing notes indicate that Lila was alert, oriented, calm, and cooperative.

[¶ 18.] In November 1998, Lila was admitted to St. Vincent’s Care Center, a nursing home, where she resided until her death on November 9, 1999. Acting on Dr. Brown’s diagnosis of severe dementia, the staff placed Lila in the Alzheimer’s Unit for three days, until the nurses concluded that she did not belong there and transferred her to a private room. 'While Lila was in the nursing home, she told Sieler that an auctioneer had visited her and that she did not want to use him, explaining her reasons. On January 12, 1999, Lila signed another form authorizing the release of her medical records to the Transport Life Insurance Company and authorized direct payment to the Q & R Clinic.

[¶ 19.] Lois Baun, Gerald Baun and Daniel Baun (collectively “the contestants”) objected to Lila’s will and trust, contending that (1) the documents were executed under undue influence, (2) Lila was not of sound mind when she executed them, and (3) she omitted the contestants from her trust and will by mistake. At trial, two mental health experts testified: Dr. Brown by deposition and Dr. Manlove by live testimony. Dr. Brown opined that Lila was not competent and Dr. Manlove opined that Lila was competent at the time the will and trust were executed. At the end of the trial, with the other issues having been abandoned, the only question remaining was whether Lila was competent when she signed the instruments. After “considering the totality of all the evidence” the circuit court found “that [Lila’s] will and trust was a result not of a spontaneous decision but a long thought out plan and that she knew what she was doing, her heirs and the extent of her property.” The circuit court concluded that she was competent.

[¶ 20.] The contestants appeal on the following issue: whether the trial court was clearly erroneous in concluding that Lila possessed the testamentary capacity necessary to execute her will and trust on July 14,1998.

Standard of Review

[¶ 21.] We review a trial court’s fact findings on testamentary capacity under the clearly erroneous standard. In re Estate of Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490 (citations omitted). No findings will be set aside unless they are clearly erroneous. SDCL 15-6-52(a); Matter of Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995). A finding is clearly erroneous if, after reviewing the entire record, we are left with the definite and firm conviction that a mistake has been made. Id. (citations omitted). All conflicts in the evidence must be resolved in favor of the trial court’s determinations. Matter of Estate of Till, 458 N.W.2d 521, 523 (S.D.1990). The credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by the trial court, and we give due regard to the trial court’s opportunity to observe the witnesses and examine the evidence. Elliott, 537 N.W.2d at 662. That we may have found the facts differently had we heard the testimony is no warrant for us to substitute our judgment for the trial court’s findings. Matter of Estate of Long, 1998 SD 15, ¶ 9, 575 N.W.2d 254, 256. Lastly, the contestants have the ultimate burden of persuasion on the issue of competency. SDCL 29A-3-407.

Analysis and Decision

[¶ 22.] Adults possess testamentary capacity when they are of sound mind. SDCL 29A-2-501 provides: “[a]n individual eighteen or more years of age who is of sound mind may make a will.” In Dokken, we used the following definition:

One has a sound mind, for the purposes of making a will, if, without prompting, he is able “to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of such property.” Soundness of mind, for the purposes of executing a will, does not mean “that degree of intellectual vigor which one has in youth or that is usually enjoyed by one in perfect health.” Mere physical weakness is not determinative of the soundness of mind, and it is not necessary that a person desiring to make a will “should have sufficient capacity to make contracts and do business generally nor to engage in complex and intricate business matters.”

Dokken, 2000 SD 9 at ¶ 13, 604 N.W.2d at 491 (citing Long, 1998 SD 15 at ¶¶ 20-23, 575 N.W.2d at 257-58) (emphasis in original) (citations omitted).

[¶ 23.] The contestants argue that a reasonable method to determine Lila’s testamentary capacity is to examine her mental status one month before and one month after the instruments were signed on July 14, 1998. They wish us to single out two events during which Lila’s mental status was open to question. Testamentary capacity cannot be ascertained in any single moment of time, but must be determined by examining the condition of a person’s mind over a reasonable time before and after the will was executed. Long, 1998 SD 15 at ¶ 23, 575 N.W.2d at 258 (citing Guardianship and Conservatorship of Lanning, 1997 SD 81, ¶ 11, 565 N.W.2d at 796 (citing In re Estate of Nelson, 330 N.W.2d 151, 155 (S.D.1983))).

[¶ 24.] The contestants also contend that expert opinion, and in particular the opinion of their expert, Dr. Brown, should be given more weight than either the lay witness testimony or the opinion of the estate’s expert who had no opportunity to personally interview Lila. Lila was initially referred to Dr. Brown, a neuropsy-chologist, by Dr. Tello to determine the degree of damage caused by her stroke. Dr. Brown noted that Lila was confused because she could not name her heirs. Although Dr. Brown did in fact personally interview Lila, the trial court found, that he “did not know of Lila’s poor eyesight nor that she had just had renal dialysis.” She was at her worst on the days she received dialysis. These physical impairments could have distorted the testing. Nevertheless, Dr. Brown diagnosed Lila with severe dementia on August 20, 1998, and opined that a significant degree of dementia would have existed before August 20, 1998. The nurses, on the other hand, after having observed Lila over a period of days, felt the diagnosis was erroneous and moved Lila into a private room. Yet, even if the trial court should have given greater weight to Dr. Brown’s opinion, as the contestants insist, people may lack mental capacity to such an extent that according to medical opinion they are of unsound mind, but nevertheless they may still retain sufficient mental capacity to execute a will. Matter of Podgursky’s Estate, 271 N.W.2d 52, 57 (S.D.1978) (citing Keely v. Moore, 196 U.S. 38, 25 S.Ct. 169, 49 L.Ed. 376 (1904)).

[¶ 25.] In contrast, Dr. Manlove, the estate’s expert, a forensic psychiatrist, never personally examined Lila. Instead, he relied on medical records and interviews of those who had contact with her during the times in question. Manlove testified that Lila had the mental capacity to legally execute her will and trust on July 14, 1998. Concluding that “medical capacity” is not the same as “legal capacity,” the trial court accepted Manlove’s opinion.

[¶26.] We cannot say that the court abused its discretion in accepting one opinion over another. Nor from the record evidence can we conclude that the trial court was clearly erroneous in finding that Lila was competent to execute her will and trust. Her handwritten instructions, made at a time when no one questions her competency, are consistent with her will and trust. It is not necessary that a person desiring to make a will have sufficient capacity to make contracts and do business generally or to engage in complex and intricate business matters. Dokken, 2000 SD 9 at ¶ 13, 604 N.W.2d at 491 (citing Petterson v. Imbsen, 46 S.D. 540, 546, 194 N.W. 842, 844 (1923)). From the time Lila executed her will and trust until her death, medical providers believed that Lila was competent to make medical decisions and to sign contracts concerning her care on several occasions. Furthermore, Dr. Tel-lo and the nurses testified that Lila’s condition improved until her final discharge from the hospital, recognizing that she had her good and bad days, depending on whether she had dialysis.

[¶ 27.] Admittedly, the medical charts reflect that the nurses recorded that Lila was confused on certain days. But neither the nurses nor Dr. Tello could testify to Lila’s condition between the hours of 1:00 p.m. and 2:00 p.m. on the afternoon of July 14, 1998. Lila obviously had moments of lucidity, even if she was confused at times. Harter was an eyewitness to the signing of the will and testified that Lila knew and understood the nature and extent of her assets and knew who her heirs were. Moreover, Harter testified that hospital policy was to consult a psychiatrist if there was a question of competency before the hospital would allow a patient to sign a power of attorney, will, or trust. Concluding that no such consultation was required, Harter arranged for another witness and a notary public to come to Lila’s room where the will and trust were executed according to Gruenwald’s written instructions. After a few telephone conversations with Lila on the morning of July 14, Gruenwald also believed that Lila was competent to execute a will and trust. Similarly, family and friends visiting Lila within days of July 14 opined that Lila was competent. Helen Kramlich and Doreen Schultz testified that Lila recognized them and was able to talk about family matters. Sieler also testified that Lila told her about the contents of her will and trust.

[¶ 28.] We acknowledge that some of the evidence on Lila’s testamentary capacity is contradictory. However, it was for the trial court to examine the conflicting evidence and sort out the truth. Dokken, 2000 SD 9 at ¶ 25, 604 N.W.2d at 494; Podgursky, 271 N.W.2d at 56; In re Williams’ Estate, 88 S.D. 55, 215 N.W.2d 489, 490 (1974). Witness credibility and evidentiary weight are trial court determinations, and a reviewing court must accept that version of the evidence, including the inferences that can be fairly drawn therefrom, favorable to the trial court’s findings. Dokken, 2000 SD 9 at ¶ 25, 604 N.W.2d at 494 (citations omitted). “Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.” SDCL 29A-3-407. There was sufficient evidence to justify the trial court’s finding that Lila Kramlich possessed sufficient testamentary capacity to execute her will and trust. The contestants failed to meet their burden. The decision was not clearly erroneous.

[¶ 29.] Affirmed.

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

      . Lila’s handwritten instructions provided:
      A. Skip one generation.
      B. The trust was to remain in effect until the youngest heir reaches age 21.
      C. The beneficiaries were to be: ,
      Three heirs of Quentin Schultz.
      Three heirs of Bradley Schultz.
      Heirs of Nancy Meyer.
      The heirs in the will were to be cancelled.
      D. $10,000 was to go to the Eureka Reformed Church.
      E. $5,000 was to go to SPURS (Special People Use Riding Skills).
      In addition, Lila set out burial instructions and attached a detailed list of her assets.

      . Harter was employed as a medical social worker by MedCenter One Hospital. Her education includes a minor in psychology.

      . Dr. Tello acknowledged that this was a contractual arrangement and that the Q & R Clinic felt that Lila was competent to enter into that contractual arrangement.

      . The evidence shows that Lila had renal dialysis from 10:50 a.m. to 1:50 p.m. on August 20, 1998, just shortly before she saw Dr. Brown. When she began renal dialysis that morning she was "alert, she was oriented, she was calm and she was cooperative.” (Tello Depo 50). Following dialysis, when Dr. Brown chose to test Kramlich, she was tired and fatigued. Moreover, Dr. Tello testified that Kramlich’s eyesight was tested on September 23, 1998, and it was determined that she had grade IV cataracts. The cataracts were advanced and present in both eyes. Cataracts do not advance quickly and thus, it can be inferred that Rramlich's eyesight on August 20, 1998, would have been almost the same as it was on September 23, 1998. In addition, Kramlich also suffered macular degeneration, which combined with the cataracts, would have made it very difficult for her to see well enough to read on August 20, 1998.

      . On July 13, 1998, Harter, on behalf of Med-Center One Hospital, and Kramlich both signed her application for admission to the assisted living center. On June 29, 1998, hospital personnel notarized Kramlich’s signing of her durable power of attorney. On July 15, 1998, hospital personnel had Kramlich sign a release to give medical records to the assisted living center and a form for the classification level of therapeutic efforts. On August 20, 1998, the same day Dr. Brown evaluated Kramlich, medical personnel in renal dialysis at the hospital had Kramlich sign a release of medical information to be sent with her to the assisted living center. As late as January 12, 1999, Kramlich signed another form authorizing the release of her medical records to the Transport Life Insurance Company and authorized direct payment to the Q & R Clinic.