author: KAPSNER, Justice.

text:
    2000 ND 129
    In the Interest of N.C.C. N.C.C., David E. Braaten, Director of Grand Forks County Social Service Board, Guardian Ad Litem for N.C.C., Plaintiffs, and C.J.W., Plaintiff and Appellant, v. C.S.C., Defendant and Appellee.
    No. 990339.
    Supreme Court of North Dakota.
    June 29, 2000.

      Thomas J. Kuchera, Kuchera, Ste-nehjem, Walberg & Sharp, Grand Forks, ND, for plaintiff and appellant.
    Constance L. Triplett, Triplett Law Office, Grand Forks, ND, for defendant and appellee.

      . Those factors are:
      b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
      c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

      g. The mental and physical health of the parents.
      h. The home, school, and community record of the child.

   KAPSNER, Justice.

[¶ 1] C.J.W. (“the mother”) appeals from the district court’s order denying her motion to amend the judgment and from its judgment changing custody of N.C.C. (“the child”) from her to C.S.C. (“the father”). We hold the district court did not clearly err in changing custody. We therefore affirm.

I

[¶ 2] The child was born on February 26, 1994, in Grand Forks, North Dakota. The mother and the father never married. In December 1994, the district court issued a judgment establishing paternity, awarding custody to the mother, establishing the father’s child support obligation, and granting reasonable visitation rights to the father.

[¶ 8] In July 1997, the father moved to establish structured visitation. He asserted the mother had often denied him visitation since June 1996 and the mother had taken the child and left the state. At a subsequent hearing, the mother conceded she had temporarily left the state. The district court advised the mother she could not take the child and move from the state without either the father’s permission or the court’s permission. The court also warned both parties that future lack of cooperation could result in loss of custody and placement with a third party. The mother admitted she “put a stop to [the father’s visitation] until he could find his own home and car to come and get [the child] and that never did successfully turn out.” The court ordered the parties to submit to psychological evaluations and any counseling deemed necessary and indicated a structured supervised visitation schedule would be set following the evaluations.

[¶ 4] Without obtaining the father’s or the court’s permission, the mother moved with the child to Oklahoma in March 1998. She sent a letter informing the father she was leaving the state but did not indicate where she was going.

[¶ 5] Emphasizing the mother’s move from the state without permission, the mother’s continued lack of cooperation, and his good faith efforts to comply with the court’s directives, the father moved to change custody. In September 1998, the court issued an interim order, granting the father temporary physical custody of the child and directing authorities to contact the father when the child’s whereabouts were discovered. In late 1998, authorities located the child and the mother, and the child was returned to Grand Forks. The mother also returned.

[¶ 6] After a hearing, the court issued a decision in March 1999, finding there had been a material change in circumstances since the 1994 judgment and the child’s best interests would be served by changing custody. The court explained “[s]ince entry of judgment in December 1994, there has been a continuing and orchestrated frustration of [the father’s] visitation rights with his son by [the mother], and this frustration has impeded a paternal bonding between [the father] and his son.” In an amended judgment issued on April 6, 1999, the court awarded physical custody to the father, established the mother’s child support obligation at $314 per month, and granted liberal visitation rights to the mother. Notice of entry of the amended judgment was issued on April 8, 1999.

[¶ 7] On April 23, 1999, the mother filed a motion for a stay and for further amendment of the judgment. In her motion, the mother indicated she moved to modify the amended judgment “insofar as it relates to child support,” “[m]otion is made pursuant to Rule 59, NDRCivP,” and “[m]ovant does not request oral argument.” Asserting the court relied on improper employment information, the mother contended the court’s child support order did not comply with the child support guidelines. She requested both parties be ordered to submit a joint child support computation. In August 1999, the mother amended her motion, submitting child support worksheets and a request for a hearing.

[¶ 8] A hearing took place in September 1999. The mother argued the child support computations were erroneous because they were based on a job she never acquired and they failed to consider she had another child in her household.

[¶ 9] On October 7, 1999, the court issued an order denying the mother’s N.D.R.Civ.P. 59 motion and reducing the mother’s child support obligation to $250 per month. A second amended judgment incorporating the reduced child support obligation was filed on October 7, 1999. The mother filed a notice of appeal indicating she appeals from “the Order denying her motion for a new trial under Rule 59” and from the judgment changing custody. Here, however, the mother only challenges the district court’s judgment changing custody and does not raise any issues regarding the denial of her N.D.R.Civ.P. 59 motion.

II

[¶ 10] Emphasizing the mother, in her N.D.R.Civ.P. 59 motion, only challenged -child support determinations in hearings, briefs, and other documents submitted to the district court, the father argues the mother’s attempt to now raise custody issues should be rejected.- We have explained although not necessary to bring a N.D.R.Civ.P. 59(b) motion in order to appeal the underlying judgment, “when a motion for new trial is made in the lower court, the moving party is limited on appeal to a review of the grounds presented to the trial court, even if the appeal is also from the judgment itself.” Larson v. Kubisiak, 1997 ND 22, ¶ 5, 558 N.W.2d 852.

[¶ 11] Here, we need not consider whether the mother properly raised issues in her motion because, although the mother and the district court sometimes labeled her motion as one for • a new trial, we conclude her motion was actually one to alter or amend the judgment. -We are not bound by the district court’s or a party’s label, and may look to the substance of the motion to determine its proper classification. “Improper labels are not binding on appeal.” Cumber v. Cumber, 326 N.W.2d 194, 195-96 (N.D.1982) (holding an interlocutory determination was erroneously labeled a “judgment”); see also City of Grand Forks v. Henderson, 297 N.W.2d 450, 453 (N.D.1980) (concluding objections to attorney fees and the related proceedings were the equivalent of a N.D.R.Civ.P. 59(j) motion). A party, however, bears the burden to correctly label its motion so as to inform the adversary of the nature of the motion and the relief sought. See N.D.R.Civ.P. 7(b)(2) (providing “[t]he rules applicable to captions and other matters of form of pleadings apply to all motions”); Vande Hoven v. Vande Hoven, 399 N.W.2d 855, 859 (N.D.1987) (explaining “[t]he paramount purpose of Rule 7(b), N.D.R.Civ. P., as well as the other procedural rules governing pleadings and motions, is to inform a party of the nature of the claims being asserted against him and the relief demanded by his adversary”). We will not always look beyond a party’s labels. Since the mother properly captioned her motion as seeking amendment of the judgment and only mischaracterized the motion as one for a new trial in later proceedings, we will look beyond such mischaracterization.

[¶ 12] Unlike a N.D.R.Civ.P. 59(b) motion for a new trial, a N.D.R.Civ.P. 59(j) motion to alter or amend a judgment does not usually request a reexamination of issues of fact. Rather, a motion to alter or amend “may be used to ask the court to reconsider its judgment and correct errors of law.” 47 Am.Jur.2d Judgments § 743 (1995 & Supp.1999). The failure to properly apply the child support guidelines to the facts involves an error of law. Richter v. Houser, 1999 ND 147, ¶ 3, 598 N.W.2d 193. Both the mother’s initial motion to amend and her amended motion to amend indicate she sought to correct the child support order so that it complied with the guidelines. The mother asserted the district court improperly computed her obligation by considering inappropriate employment information and by failing to consider another child lived in her household. At the hearing on her motion, the mother again contended the district court erred in calculating her child support obligation. Because the mother requested the district court reconsider its judgment and correct errors of law, her motion was a N.D.R.Civ.P. 59(j) motion to alter or amend the judgment rather than a N.D.R.Civ.P. 59(b) motion for a new trial. The mother accordingly is not limited in her appeal from the judgment to a review of the grounds presented in her motion to the trial court. See Larson, at ¶ 5. The issue of custody is reviewable under N.D.R.App.P. 35(a).

Ill

[¶ 13] The father challenges the timeliness of the mother’s appeal from the judgment. Under N.D.R.App.P. 4(a)(4), the time for filing a notice of appeal from a judgment is tolled by a party’s timely motion under N.D.R.Civ.P. 59(j). City of Grand Forks v. Henderson, 297 N.W.2d 450, 453 (N.D.1980) (concluding objections to attorney fees and the related proceedings were a Rule 59(j) motion which “tolled the time for appeal and established a new time period beginning from the notice of entry of the amended judgment”). A motion is timely under N.D.R.Civ.P. 59(j) if served and filed no later than 15 days after notice of entry of the judgment. Following the denial of a N.D.R.Civ.P. 59(j) motion, N.D.RApp.P. 4(a)(4) provides a party has the full 60 days to appeal from the judgment. Id.

[¶ 14] The mother’s appeal is timely. The mother timely moved for relief under N.D.R.Civ.P. 59(j) because she submitted her motion no more than 15 days after notice of entry of the judgment changing custody. Notice of entry of the judgment was issued on April 8, 1999, and the mother filed her motion on April 23, 1999. The mother’s appeal from the judgment is timely because she filed her notice of appeal within 60 days of the order denying her motion. The order denying the mother’s motion was filed on October 7, 1999, and the mother filed her notice of appeal on November 8,1999.

IV

[¶ 15] The mother challenges the district court’s decision to change custody. Under N.D.C.C. § 14-09-06.6(6):

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

[¶ 16] A district court’s findings on a motion to modify custody will not be set aside unless they are clearly erroneous. Hendrickson v. Hendrickson, 1999 ND 37, ¶ 6, 590 N.W.2d 220. A finding is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. Tormaschy v. Tormaschy, 1999 ND 131, ¶ 11, 596 N.W.2d 337.

[¶ 17] Here, the district court applied the proper two-prong test under N.D.C.C. § 14-09-06.6(6) to determine whether custody should be changed. The court found there had been a material change in circumstances since the, order establishing custody and modification of custody was necessary to serve-the child’s best interests.

A

[¶ 18] A material change in circumstances occurs when there are “new facts which were unknown to the moving party at the time the decree was entered'.” Wright v. Wright, 463 N.W.2d 654, 655 (N.D.1990) (describing the term “changed circumstances”).

[¶ 19] The record supports the district court’s finding a material change has occurred in the circumstances of the child or the parties since issuance of the order establishing custody. There is evidence the mother has repeatedly frustrated the father’s visitation. The father stated the mother began denying visitation prior to June 1996. The mother admitted she took the child and temporarily left the state in 1997. She also admitted she refused to allow the father to exercise visitation until he had his own home and vehicle. Despite the district court’s clear directive, the mother moved with the child to Oklahoma in 1998. She testified “I knew if I left permanently that I should ... ask for permission but when I left, I had intentions of coming back if at all possible.” The guardian ad litem testified the mother was reluctant to allow the father into the child’s life.

[¶ 20] There is evidence the mother attempted to alienate - the father from the child. Carol Schneweis, a -clinical social worker, stated she witnessed some conversations between the father and the child which indicated the mother was trying to alienate the father from the child. The guardian ad litem reported “[i]t appears from the content of the letters [sent from the mother to the child], comments from Ms. Schneeweiss [sic], [the father] and [the child], and [the mother] herself, that she has tried to alienate [the child] from his father.”

[¶ 21] . There is evidence the mother failed to cooperate with social services’ efforts to provide assistance for the child and . her. Shari Fiedler, a social services employee, testified. the mother often refused to meet with her. The guardian ad litem testified the mother has refused to allow social services employees to enter her home to observe the home environment.

[¶22] Finally, there is evidence the father has become dedicated., to improving himself and the parties’ relationship so the child will benefit. Carol Schneweis testified that, after attending some counseling sessions, the father realized “his role was to put [the child’s] interests first.” She testified “[the father] understands [the child’s] need to have a relationship with his mother.” In a July 7, 1998 letter to the district court, Schneweis reported “[the father] is making every effort to be prepared to parent [the child] in a responsible[,] loving manner.” The guardian, ad litem reported “[the father] has made significant positive changes in his life” and “is willing to continue to work with the social service agencies.”

[¶ 23] Based on the foregoing evidence, we conclude the district court did not clearly err in finding there was a material change in circumstances.

B

[¶ 24] In determining whether modification of custody is necessary to serve the child’s best interests, the district court ¡must use the factors set forth in N.D.C.C. § 14-09-06.2(1). Blotske v. Leidholm, 487 N.W.2d 607, 610 (N.D.1992). The best interests of the child must be gauged against the backdrop of the stability of the child’s relationship with the custodial parent. Id. . ,

[¶ 25] The district court acknowledged the factors must be.“balanced against the stability of a child’s.relationship with the custodial parent,” but indicated it -“is not sure that [the child] has ever been able to live in a stable satisfactory environment.”

[¶ 26] The record supports the district court’s indication the child’s relationship with the mother lacked stability. The mother testified she once left the child with her other son’s family in Wisconsin for approximately nine weeks and, on another occasion, she left the child with her friend’s grandmother for approximately two weeks. Carol Schneweis reported she and the mother “were working on helping [the mother] provide increased structure and stability for [the child]” just before the mother took the child and moved-to Oklahoma. The guardian ad litem reported the mother admitted she left the child ‘with a babysitter for a few days because she was caught in a blizzard and she had lost many jobs and homes. The guardian ad litem concluded the mother’s “pattern of moving around and leaving her children unattended indicates that she needs some help with her own parenting.” Shari Fiedler testified there was evidence the mother- failed to provide adequate supervision on at least one occasion. Fiedler also testified, the mother “has put her own needs before her son’s, and [has] not looked at his best interests.” We accordingly conclude the district court properly considered the stability of the child’s relationship with the mother and did not clearly err in indicating that relationship lacked stability.

’ '[¶ 27] The district court indicated factors (b), (c), (g), and (h), N.D.C.C. § 14-09-06.2(1), favored modification of custody and the other factors were not applicable or were óf little importance. The court emphasized the mother’s long pattern of frustrating the father’s visitation rights, the mother’s failure to cooperate with social services and the father, and the father’s commitment to the child:

[¶ 28] The district court properly considered the mother’s frustration of visitation. A custodial parent’s, “move to another state [without the permission of either the district court or the noncustodial parent] does not, by itself, compel a change of custody.” Gould v. Miller, 488 N.W.2d 42, 44 (N.D.1992). However, the district court, in reviewing a change of custody motion, may consider a parent’s -repeated frustration of visitation. Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220. Because there is evidence the mother has repeatedly frustrated visitation despite being advised she needed to obtain permission to move from the state and being advised she might lose custody, the district court did not clearly err in determining the' frustration is a factor which supports changing custody.

[¶ 29] The district court properly acknowledged the mother’s failure to cooperate with social services and the father. The court noted the mother “had prevented [the child] from accessing court-ordered services” and had “refused to participate in court-ordered evaluations and counseling at Northeast Human Center which were an attempt to resolve the ongoing acrimony between [the mother] and [the father] for the sake of their son.” A parent’s failure to cooperate with social service agencies is a valid factor to consider when determining a child’s best interests. See In the Interest of L.J., 436 N.W.2d 558, 563 (N.D.1989) (providing “[l]ack of cooperation with Social Services is pertinent to resolving whether deprivation will continue” in a termination of parental rights case). A parent’s failure to cooperate with the other parent, as demonstrated by attempted alienation, is likewise relevant. See Hendrickson, at ¶¶ 7-8. Since there is evidence the mother has failed to cooperate with social services and with the father, the district court did not clearly err in considering her failure to cooperate supports modification of custody.

[¶ 30] Finally, the district court appropriately considered the father’s commitment to the child. “A party’s commitment to parenting is a valid factor to consider in determining custody.” Kjelland v. Kjelland, 2000 ND 86, ¶ 10, 609 N.W.2d 100. Because there is supporting evidence, the district court did not clearly err in determining his commitment supports modification.

[¶ 31] Asserting the father committed a pattern of domestic violence, the mother argues the district court clearly erred in determining factor (j) was inapplicable. Under factor (j), N.D.C.C. § 14-09-06.2(1):

In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence. If the court finds credible evidence that domestic violence has occurred, and there exists one incident of domestic violence which resulted in serious bodily injury or involved the use of a dangerous weapon or there exists a pattern of domestic violence within a reasonable time proximate to the proceeding, this combination creates a rebuttable presumption that a parent who has perpetrated domestic violence may not be awarded sole or joint custody of a child....

[¶ 32] Here, there is evidence to support the district court’s determination “[t]here appears to have been no verified incidents of domestic violence involving either party in the past five years.” Shari Fiedler testified there were allegations in 1994 the father had physically abused the child; however, those allegations never went beyond a probable cause determination. Fiedler testified there were later allegations the mother physically abused the child. The mother testified the father made at least one threatening phone call to her, but the father denied ever making a threatening call. When asked whether he threatened or harassed the mother in the months prior to her move to Oklahoma, the father testified he had not spoken to the mother in the months prior to the move. Carol Schneweis testified that although. the father did not complete a domestic violence program, the father made significant progress during meetings regarding parenting and anger awareness. She testified the father was frustrated with how slow the parenting and visitation issues were being resolved, but she “never felt like [he] was going to be violent.” We accordingly hold the district court did not clearly err in finding there was not sufficient credible evidence of domestic violence to engage the presumption of factor (j), N.D.C.C. § 14-09-06.2(1).

[¶ 33] Based on the foregoing, we conclude the district court did not clearly err in determining modification of custody is necessary to serve the child’s best interests.

V

[¶ 34] Because the district court did not clearly err in changing custody, we affirm.

[¶ 35] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., concur.

      . In Hendrickson, we explained, "[ajlthough, we recognize methods other than a change of custody should be used initially to remedy a parent’s misbehavior, we also recognized that, after exhausting other remedies, a change in custody may be the only method to correct the damage of a particularly stubborn and defiant custodial parent.” Id. at ¶ 13 (citation omitted).


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2000 ND 130
    In the Interest of A.R., a child. L.J. Bernhardt, Petitioner and Appellee, v. A.R., a child, K.G., her mother, Respondents and Appellants, and D.R., her father, J.R., her grandfather/guardian, and the Director of North Dakota Department of Human Services, Respondents.
    No. 20000021.
    Supreme Court of North Dakota.
    June 29, 2000.
    Rehearing Denied July 21, 2000.

      A.R., pro se, and K.G., pro se, respondents and appellants.
    Owen K. Mehrer, Assistant State’s Attorney, Dickinson, N.D., for petitioner and appellee.
   MARING, Justice.

[¶ 1] A.R. and her mother, K.G., appeal from a trial court order terminating KG.’s parental rights and transferring care, custody and control of A.R. to the Executive Director of the North Dakota Department of Human Services. We affirm.

[¶ 2] Before turning to the merits, we address a procedural argument raised by Appellee. He contends KG.’s appeal is untimely and, therefore, this Court lacks jurisdiction to hear it. However, Appellee concedes A.R. and KG.’s appeals present identical issues, that A.R. has standing to raise these issues, and that A.R.’s appeal was timely filed. Thus, we conclude the merits of this case are properly before us through A.R.’s appeal, and we deem it unnecessary to examine the timeliness of KG.’s appeal. See Kaler v. Kraemer, 1999 ND 237, ¶ 22, 603 N.W.2d 698 (“Questions, the answers to which are not necessary to the determination of an appeal, need not be considered.”).

[¶ 3] Turning to the merits, Appellants challenge the juvenile court’s findings of fact relating to its determination K.G.’s parental rights should be terminated, namely: (1) A.R. is a deprived child; (2) the conditions and causes of A.R.’s deprivation are likely to continue; and (3) in the future, A.R. would likely suffer serious physical, mental, moral or emotional harm. See N.D.C.C. § 27-20-44(l)(b). In an appeal from an order of the juvenile court, our review is comparable to a trial de novo in that we may reexamine the evidence; our review is not limited to determining whether the juvenile court’s findings are clearly erroneous. Interest of R.K.E., 1999 ND 106, ¶ 4, 594 N.W.2d 702. However, we give “appreciable weight” to the findings of the juvenile court because that court heard the testimony and had the opportunity to observe the candor and demeanor of the witnesses. See N.D.C.C. § 27-20-56(1); Interest of R.D.B., 1998 ND 15, ¶ 9, 575 N.W.2d 420.

[¶ 4] The juvenile court held an eviden-tiary hearing during which it heard evidence and arguments by counsel and also reviewed the report of A.R.’s guardian ad litem. Following this hearing, it found K.G. had physically and verbally abused A.R. in the past, that K.G. had an extensive history of substance abuse and had been incarcerated many times, and that K.G. played only a limited role in A.R.’s upbringing. Further, the court found A.R. was suffering from a variety of psychological and substance abuse problems and that she had stolen and crashed her grandfather’s car in an attempt to run away from home. Based on these facts, the juvenile court determined it was in A.R.’s best interests that KG.’s parental rights be terminated.

[¶ 5] Under N.D.C.C. § 27-20-56(1), in an appeal from an order of the juvenile court, this Court is to review the “files, records, and minutes or transcript of the evidence of the juvenile court.” Under Rule 10(b), N.D.R.App.P., in an appeal from a proceeding in which an evidentiary hearing was held, it is the duty of the appellant to order a transcript. Yet, neither appellant in this case secured a transcript of the evidentiary hearing which preceded the juvenile court’s order. We have warned that an appellant “assumes the consequences and the risk for the failure to file a complete transcript.” City of Fargo v. Erickson, 1999 ND 145, ¶ 16, 598 N.W.2d 787 (citation omitted). It is the appellant’s burden to call to this Court’s attention the evidence, or lack thereof, which makes the findings erroneous. Owan v. Kindel, 347 N.W.2d 577, 579 (N.D.1984). In the absence of a transcript, we find nothing in the record before this Court that contradicts the juvenile court’s findings, to which we accord some deference under our standard of review.

[¶ 6] We, therefore, affirm the juvenile court’s order.

[¶ 7] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, DALE V. SANDSTROM, CAROL RONNING KAPSNER, JJ., concur.


author: KONENKAMP, Justice MILLER, Chief Justice

text:
    2000 SD 72
    STATE of South Dakota, Plaintiff and Appellee, v. Cindy McVAY, Defendant and Appellant.
    No. 21059.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2000.
    Decided June 7, 2000.

      Mark Barnett, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Clifton E. Katz of Katz Law Office, Huron, for defendant and appellant.
   KONENKAMP, Justice

[¶ 1.] A jury convicted Cindy McVay of furnishing an alcoholic beverage to a minor and contributing to the delinquency of a minor. The minor was her son D.S. She was acquitted of the same charges involving J.L., her son’s sixteen-year-old friend. We affirm.

PACTS

[¶ 2.] During the early evening of October 16, 1998, J.L.’s mother picked him up at his grandparents’ home and took him to the Country Bar in Alpena, South Dakota, where he met his friends D.S., A.V.O., and A.O. The four, all under the age of eighteen, played pool and then decided to drive around.

[¶ 3.] J.L. and A.0. were in one car; D.S. and A.V.Ó. were in another. They communicated by cell phone and decided to find someone to buy alcohol for them. When their efforts proved unsuccessful they returned to the bar where D.S.’s mother, McVay, was celebrating her birthday.

[¶ 4.] D.S. entered the bar and asked his mother to buy some alcohol for the foursome. She bought him a liter of Lord Calvert. McVay and D.S. left the bar with the bottle and spoke to A.V.O. McVay then returned to the bar and the four minors left in their separate cars and drove through the rain.

[¶ 5.] As they were driving A.O., J.L., and D.S. were drinking. When they arrived at the Alpena water tower and eventually at the darkened football field, the three continued to drink. The testimony conflicted on whether the minors drank only beer, drank the whiskey McVay provided, and passed the liquor bottle between cars.

[¶ 6.] As a result of the evenings’ events, J.L. became intoxicated and afraid to go home. His companions left him in a parked car. Later, a home owner found J.L. curled up in his front yard. His clothes were soaked and he had no shoes or coat. He was rushed to the Huron Regional Medical Center suffering from hypothermia.

ISSUE ONE

[¶ 7.] Were jury instructions 7 and 9 prejudicial to McVay?

A. Instruction No. 7

[¶ 8.] McVay was charged with violating SDCL 35-9-1 which, at the time, provided:

It is a Class 1 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person under the age of eighteen years unless it is done in the immediate presence of a parent or guardian or spouse over twenty-one years of age or by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.

[¶ 9.] Pursuant to this statute, the jury was given Instruction No. 7:

The “immediate presence of a parent” means that the parent must be present both at the time of the selling or giving of the alcoholic beverage to the minor and at the time of the possession or consumption of the alcoholic beverage by the minor. If a parent gives to her minor child an alcoholic beverage for use as an alcoholic beverage and then leaves the presence of the child, the parent has committed the crime of furnishing an alcoholic beverage to a person under the age of eighteen years.

[¶ 10.] McVay believes that the legislature intended to place the responsibility on parents to decide whether their child can have alcohol and when and where that alcohol is consumed. She contends that SDCL 35-9-1 only requires a parent’s presence when alcohol is sold or given. The consumption of alcohol by a minor, she claims, can take place outside of the immediate presence of a parent.

[¶ 11.] In construing statutes:

Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enactments relating to the same subject. Words used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature’s apparent intention justifies departure. When conflicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. However, terms of a statute relating to a particular subject will prevail over general terms of another statute. Finally, we must assume that the legislature, in enacting a provision, had in mind previously enacted statues [sic] relating to the same subject, (citations omitted).

Weger v. Pennington County, 534 N.W.2d 854, 856 (S.D.1995).

[¶ 12.] Applying these rules clearly shows that the trial court correctly interpreted SDCL 35-9-1 and properly gave Instruction No. 7. The legislature has emphasized the importance of enforcing all laws relating to alcoholic beverages and the illegality of underage drinking. See, Gleason v. Peters, 1997 SD 102, 568 N.W.2d 482 (Sabers, J., dissenting.)

[¶ 13.] SDCL 35-9-1 generally prohibits the selling or giving for use (i.e. consumption) as a beverage, alcohol to persons under age eighteen. SDCL 35-9-1 provides two limited exceptions to this general rule. The relevant exception here is that the selling and giving for use of the alcohol as well as its consumption must be done in the immediate presence of a parent. The statute does not authorize parents to permit children to consume alcohol outside their presence. It only allows consumption by a minor where there is immediate parental supervision of that consumption.

B. Instruction No. 9

[¶ 14.] McVay was charged with two counts of contributing to the delinquency of a minor. SDCL 26-9-1 provides:

Any person who, by any act, causes, encourages or contributes to the abuse, the neglect or the delinquency of a child, or any person, other than a parent who, by any act, causes a child to become a child in need of supervision,, as such phrases with reference to children are defined by chapters 26-7A, 26-8A, 26-8B and 26-8C, or who is, in. any; manner, responsible therefor, is guilty of a Class 1 misdemeanor.

To find a person guilty of SDCL 26-9-1 it is not necessary to prove the child is actually delinquent if the evidence shows “that through any act of abuse, neglect or omission of duty or by any improper act or conduct on the part of any such person the abuse, neglect or delinquency of any child may have been caused or merely encouraged.” SDCL 26-9-6. These statutes are liberally construed in favor of the state to protect children from the improper conduct, acts, or bad example of persons which may be calculated to cause, encourage, or contribute to the delinquency of children. SDCL 26-9-7.

[¶ 15.] Instruction No. 9 was given to the jury:

lt is a crime in the State of South Dakota for any person to have a package or any receptacle containing an alcoholic beverage, in his possession in a motor vehicle unless the seal of the original package remains unbroken or the alcoholic beverage is so removed that no occupant of the motor vehicle shall have access to it while.the vehicle is in motion. A minor who committed this crime would be a delinquent child under South Dakota law. Any person who caused, encouraged, or contributed to the commission of .this crime by a minor would be contributing to the delinquency of a minor.

This instruction was a part of a series of instructions dealing with the crime of contributing to the delinquency of a minor.

[¶ 16.] McVay contends that she should not have been convicted of contributing to the delinquency of a minor because Instruction No. 9 misstates the law. McVay does not object to the first sentence of Instruction No. 9 which properly interprets SDCL 35-1-9.1 as effective at that time:

It is a Class 2 misdemeanor for any person to have a package or any receptacle containing an alcoholic beverage in his possession in a motor vehicle unless the seal of the original package remains unbroken or the alcoholic beverage is so removed that no occupant of the motor vehicle shall have access to it while the vehicle is in motion.

[¶ 17.] McVay argues that she cannot be guilty of contributing to the delinquency of a minor because open container violations, SDCL 35-1-9.1, are traffic violations which are exempt from the definition of delinquent child:

In this chapter and chapter 26-7A, the term, delinquent child, means any child ten years of age or older who, regardless of where the violation occurred, has violated any federal, state or local law or regulation for which there is a penalty of a criminal nature for an adult, except state or municipal hunting, fishing, boating, park, or traffic laws that are classified as misdemeanors, or violations of § 35-9-2, or petty offenses.

SDCL 26-8C-2. She cites Op. Att’y Gen. 78-47 for the proposition that an open container violation is exempted from the definition of delinquent child because it is a traffic offense.

[¶ 18.] We need not decide if an open container violation is exempted from the definition of delinquent child since “[j]ury instructions are adequate when, considered as a whole, they give the full and correct statement of the law applicable to the case.” State v. Pellegrino, 1998 SD 39, § 9, 577 N.W.2d 590, 594. Here the jury was given extensive instructions regarding contributing to the delinquency of a minor. It was instructed that the elements of the crime included any act abusing, encouraging or contributing to the delinquency of a person under age 18. The act of furnishing alcohol to D.S. satisfies these elements. The final two sentences in Instruction No. 9 are merely surplusage and the error, if any, is harmless.

ISSUE TWO

[¶ 19.] Is SDCL 35-9-1 unconstitutionally vague?

[¶ 20.] At the time of McVay’s arrest and trial SDCL 35-9-1 provided:

It is a Class 1 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person under the age of eighteen years unless it is done in the immediate presence of a parent or guardian or spouse over twenty-one years of age or by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.

McVay contends that if SDCL 35-9-1 is construed to require a parent to be present when alcohol is consumed, a person of ordinary intelligence would not have fair notice of the violation.

[¶ 21.] In Lodermeier v. Class, 1996 SD 134, § 18, 555 N.W.2d 618, 625 this Court reiterated:

A crime must be statutorily defined with definiteness and certainty. A statute which either forbids or requires the doing of an act in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. A criminal statute must give a person of ordinary intelligence fair notice [of what] conduct is forbidden.
State v. Hauge, 1996 SD 48, ¶ 12, 547 N.W.2d 173, 177 (citations and quotations omitted),
Lodermeier must overcome a strong presumption of constitutionality:
[T]he laws enacted by the legislature are [presumed] constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.
Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d at 175 (citations and quotations omitted). Our review of SDCL 22-11-27 and the specific jury instructions explaining this statute do not convince us that Loder-meier has overcome his burden to show evident unconstitutional vagueness, or that he was deprived of his right to a fair trial.

[¶ 22.] As in Lodermeier, McVay has not overcome the burden of showing evident unconstitutional vagueness or that she was deprived of her right to a fair trial. The statute and the jury instructions explaining it clearly set forth what conduct is forbidden. The fact that McVay does not agree with the statute is of no matter.

ISSUE THREE

[¶ 23.] Did the trial court err by ordering McVay to pay J.L.’s medical bills?

[¶ 24.] At sentencing, the following occurred:

THE COURT: Is there any cause or reason why the Court should not pronounce sentence?
MR. KATZ: No.
THE COURT: On both charges, the furnishing of alcohol to a minor and the contributing to the delinquency of a minor, it will be the judgment and sentence of the Court that you pay a $500 fine, that you be confined in the Jerauld County Jail for a term and period of six months.
I will suspend five months of the jail sentence on both counts on the condition that you pay the fine and costs, including Court-appointed attorney’s fees; that you pay restitution in the amount of $2,068.20; and the sentence on the remaining 60 days will run consecutively. Also that you obey all laws, state, federal, municipal, Indian jurisdictions for a period of two years.
Do you want to agree to .those conditions, or do you want to' do the six months? It would actually be twelve months consecutive.

THE DEFENDANT: I agree.

[¶ 25.] The judgment of conviction recited, in part,

IT IS FURTHER ORDERED that five (5) months of each of the above-referenced jail terms shall be suspended upon the following terms and conditions:
(1) That the Defendant shall pay the above-referenced fines and all of the costs of the action, including court-appointed attorney fees.
(2) That the Defendant shall make restitution to [J.L.] in the amount of Two Thousand Sixty-eight Dollars and Twenty Cents ($2,068.20).
(3) That the Defendant shall obey all laws of the United States of America, the State of South Dakota, and all political subdivisions and American Indian reservations thereof for a term and period of two (2) years.
(4) That the Defendant shall serve the remaining thirty (30) days of each jail sentence consecutively.
(5) That the Defendant shall be allowed work release.

[¶ 26.] McVay contends that the circuit court erred by ordering her to pay J.L.’s medical bills. She contends that J.L. was not a victim of her crime, SDCL 23A-28-2(5), SDCL 22-1-2(31), and restitution was improper.

[¶ 27.] We resolved this issue in Hafner v. Leapley, 520 N.W.2d 252, 253-254 (S.D.1994):

Hafner contends the trial court had no authority to order him to pay $5,000 to Codington County as compensation for the county victim assistant. In so arguing, Hafner erroneously assumes the $5,000 was “restitution” governed by the restitution statutes found at SDCL ch. 23A-28. Hafner’s assumption is erroneous because the $5,000 is not restitution, but rather, a condition attached to a suspended sentence.

SDCL 23A-27-18 provides:

Upon conviction, the court having jurisdiction to try the offense may suspend the execution of any sentence imposed during good behavior, subject to such conditions or restitutions as the court may impose. The suspension order or judgment can be made only by the court in which the conviction occurred, (emphasis added).
The court’s authority to impose conditions is limited only to the extent that the conditions must be reasonable and legal. White Eagle v. State, 280 N.W.2d 659 (S.D.1979).

[¶ 28.] “When a convicted criminal asks the court for grace, such as probation or a suspended sentence, the court may impose conditions upon that favor. SDCL 23A-27-18.” Id. That is what happened in MeVay’s case. The ordering of payment of J.L.’s medical bills was reasonable, legal, and agreed to by McVay.

[¶ 29.] The judgment is affirmed.

[¶ 30.] SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 31.] MILLER, Chief Justice, concurs specially.

MILLER, Chief Justice

(concurring specially).

[¶ 32.] I fully concur in the majority opinion.

[¶ 33.] The words that follow may seem harsh. However, after almost 40 years in the legal profession, nearly 30 of those as a judge, I’ve seen the deterioration of families, the loss of life, and the occurrence of other preventable tragedies that have been caused by the actions of irresponsible parents such as McVay.

[¶ 34.] I write specially to express my disgust for the despicable and illegal actions of this foolish, unthinking and irresponsible parent. Directly assisting her minor son and his friends in illegal, unsupervised alcohol consumption is appalling.

[¶ 35.] What could have ever possessed McVay, and what was she thinking, when she purchased a liter of hard liquor for D.S. and his young friends and then turned them loose on the town without thought or supervision? A boring Friday night, three teenage boys, one teenage girl, two cars and a liter of whiskey for entertainment: I cringe when I imagine what could have happened. She is lucky that no one died and that the only consequence of her stupid, irresponsible and illegal decision was J.L.’s severe intoxication and hypothermia.

[¶ 36.] MeVay’s blatant disrespect for the law clearly sanctions and probably fosters the same defiant attitude in her son. How is a young person like D.S. ever to learn or appreciate right from wrong when considering the horrible example set by a parent like McVay; someone who scoffs at the law and then has the audacity to challenge it when she is caught? McVay may consider herself a martyr for parents who want to show their children how to have a “good time.” In reality, she appears to be an irresponsible parent woefully unqualified to impart societal values to her child.

[¶ 37.] The discouraging aspect of this case is that it was entirely preventable. Throughout my career, I’ve seen the damage inflicted by the actions of parents like McVay who ignore their responsibility to set an example of right and wrong for our children. It is no wonder that so many of our kids are in trouble today!

[¶ 38.] Shame on you Ms. McVay!!

      . This statute was amended By 1999 S.D. Sess.Law 188 and currently provides:
      It is a Class 1 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person under the age of eighteen years unless:
      (1) It is done in the immediate presence of a parent or guardian or spouse, who is at least twenty-one years of age, while not on the premises of an establishment licensed for the retail sale of alcoholic beverages pursuant to § 35-4-2 or at a special event for which an alcoholic beverage license has been issued pursuant to § 35-4-11.4; or
      (2) It is done by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.

      . These instructions were also given:
      Instruction No. 8
      Any person who by any act, causes, encourages or contributes to the delinquency of a minor is guilty of a crime.
      Instruction No. 10
      As to Count III, the elements of the crime of contributing to the delinquency of a minor, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
      (1) That Cindy McVay by any act;
      (2) Caused, encouraged or contributed to the delinquency of [D.S.]; and
      (3) That [D.S.] is under eighteen years of age. ■ •
      Instruction No. 11
      As to Count IV, the elements of the crime of contributing to the delinquency of a minor, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
      (4) That Cindy McVay by any act;
      (5) Caused, encouraged or contributed to the delinquency of [J.L.]; and
      (6) That [J.L.] is under eighteen years of age.
      Instruction No. 12
      An essential component of the crime of contributing to the delinquency of the minor is the delinquency of that child as delinquency is defined in state law. However, in establishing the offense of contributing to the delinquency of a minor, it is not necessary to prove that the child actually became delinquent. It is sufficient if the evidence shows that the delinquency of the child may have been caused by an act of the defendant. It is also sufficient if the evidence shows that the delinquency of the child may have been merely encouraged by an act of the defendant.
      Instruction No. 13
      Delinquent child means any child ten years of age or older who regardless of where the violation occurred, has violated any federal, state or local law or regulation for which there is a penalty of a criminal nature of an adult, except.state or.municipal hunting, fishing, boating, park, or traffic laws that are classified as misdmeanors [sic], or violations of § 35-9-2, or petty offenses.
      Instruction No. 14
      §§ 35-9-2 prohibits a person under the age of twenty-one years from purchasing, attempting to purchase or possessing or consuming alcoholic beverages except when consumed in a religious ceremony and given to said person by an authorized person.

      . SDCL 35-1-9.1 currently provides:
      It is a Class 2 misdemeanor for any person occupying a motor vehicle located upon a public highway or the right-of-way of a public highway to consume any alcoholic beverage or have a package or any receptacle containing an alcoholic beverage in that person's possession unless the seal of the original package remains unbroken or the alcoholic beverage is so removed from the passenger area of the motor vehicle that no occupant of the motor vehicle has access to it.
      1999 S.D. Sess.Law. ch. 184 § 1.


author: BASTIAN, Circuit Judge.

text:
    2000 SD 76
    Thaddeus OPENHOWSKI, Plaintiff and Appellee, v. Alex MAHONE, Defendant and Appellant. Grinnell Mutual Reinsurance Company, Plaintiff and Appellant, v. Robert E. Mahone, Annette Mahone and Alex Mahone, Defendants, and Thaddeus Openhowski, Defendant and Appellee.
    Nos. 21133, 21148.
    Supreme Court of South Dakota.
    Considered on Briefs April 25, 2000.
    Decided June 14, 2000.

      Lon J. Kouri and John H. Billion of May, Johnson, Doyle & Becker, Sioux Falls, for plaintiff and appellant Grinnell Mutual Reinsurance Company.
    Melanie L. Carpenter of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant Alex Mahone.
    Brian L. Radke of Radke Law Office, Sioux Falls, for plaintiff, defendant and appellee Thaddeus Opénhowski.
   BASTIAN, Circuit Judge.

[¶ 1.] Alex Mahone. (Alex) and Grinnell Mutual Reinsurance Company (Grinnell) each submitted petitions for intermediate appeal to this Court from orders denying their individual motions for summary judgment. We granted the petitions and consolidated them for review. We reverse the orders of the trial courts and remand with instructions.

PROCEDURAL HISTORY

[¶ 2.] Both actions derive from an injury allegedly suffered by Thaddeus Openhow-ski (Opénhowski), a police officer, when he attempted to arrest Alex at the home of his father, Robert Mahone (Robert) on September 26, 1995. Opénhowski gave notice of a claim against Robert’s homeowner’s insurance policy with Grinnell. Grinnell commenced a declaratory judgment action against Robert, Robert’s wife, Annette (Annette), Alex and Openhowski. Grinnell alleged it had issued a homeowner’s policy to Robert that was in effect on the date of the alleged injury. Grinnell further alleged Robert was the insured under the policy, Alex was not an insured, and the actions of Alex were therefore excluded from coverage. Grinnell sought a judgment declaring the rights, duties, obligations and legal relations of the parties relative to the insurance coverage and a determination that it had no duty to defend Robert, Annette or Alex. All four defendants were personally served with the summons and complaint in June and July 1997.

[¶ 3.] Openhowski answered Grinnell’s complaint in a timely manner. Robert, Annette and Alex did not answer or make any appearance. Grinnell brought a motion for default judgment against Robert, Annette and Alex. Grinnell filed a motion for summary judgment against Openhow-ski on the grounds that his claim had expired September 26, 1998, and was therefore barred by the statute of limitations. The trial court denied the motions and Grinnell appeals.

[¶ 4.] Openhowski filed a personal injury action against Alex in October 1997, claiming Alex negligently caused his injuries when he attempted to arrest him September 26,1995. The summons and complaint were delivered to the Minnehaha County sheriffs office in September 1997. They were returned without service October 2, 1997. Upon Openhowski’s motion and affidavit claiming that personal service on Alex could not be obtained, the trial court ordered service by publication. No publication occurred, however, and the action did not commence.

[¶ 5.] On September 18, 1998, a summons and complaint were again delivered to the Minnehaha County sheriffs office for service on Alex. The documents were returned without service December 9, 1998. In the meantime, on November 13, 1998, the trial court granted Openhowski’s second motion and affidavit for service by publication. The summons was published for four consecutive weeks commencing November 20,1998.

[¶ 6.] In January 1999, Openhowski filed a motion for default judgment. Alex filed an answer February 1, 1999, and the motion was withdrawn. Alex then filed a motion for summary judgment asserting that Openhowski’s claim was barred by the statute of limitations. The trial court denied the motion and Alex appeals.

[¶ 7.] In both cases, Openhowski opposed the motions for summary judgment by affidavits generally stating that Alex had absconded to Denver, Colorado to avoid warrants of arrest and was unwilling to return to Sioux Falls.

DECISION

[¶ 8.] Whether the trial courts erred in denying the motions for summary judgment.

[¶ 9.] In support of their separate motions for summary judgment, Alex and Grinnell allege that Openhowski failed to commence his personal injury claim within the time required by the applicable statute of limitations.

[¶ 10.] The standard for summary judgment is well settled.

In reviewing a grant or a denial of summary judgment under SDCL 15 — 6—56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of. material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
In response to a summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations. Summary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact.

Wissink v. Van De Stroet, 1999 SD 92, ¶ 9, 598 N.W.2d 213, 215 (internal citations omitted).

[¶ 11.] Statutes of limitations are necessarily arbitrary. Chipperfield v. Woessner, 84 S.D. 13, 166 N.W.2d 727, 728 (1969). They are regarded as statutes of repose designed to eliminate fraudulent and stale claims and operate against those who sleep on their rights. A defense based on a statute of limitations is meritorious and should not be regarded with disfavor, rather it should be treated like any other defense. Id.

[¶ 12.] Pursuant to SDCL 15-2-14(3), Openhowski’s action to recover for an alleged personal injury must be commenced within three years after the cause of action accrues. Openhowski alleges the injury occurred September 26, 1995. Thus, absent some tolling statute, the limitations period expired September 26,1998.

[¶ 13.] On September 18, 1998, Open-howski delivered the summons, with the intent that it be served, to the sheriffs office of Minnehaha County, the county in which Alex last resided. Pursuant to SDCL 15-2-31, Openhowski’s attempt to commence the action on September 18, 1998, “is deemed equivalent to the commencement thereof’ provided the attempt is “followed by the first publication of the summons, or the service thereof, within sixty days” of the delivery of the summons to the sheriffs office. As noted, personal service was not obtained. The summons was first published November 20, 1998, sixty-three days after Openhowski attempted to commence the action. Again, absent some tolling statute, the limitations period expired on November 17,1998.

[¶ 14.] Openhowski argues the applicable tolling statute is SDCL 15-2-20. This statute provides in pertinent part;

If when the cause of action shall accrue against any person he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if after such cause of action shall have accrued, such person shall depart from and reside out of the state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action[.]

[¶ 15.] This Court has held that the defendant’s mere absence from the state does not activate the tolling provisions of SDCL 15-2-20. Burke v. Foss, 334 N.W.2d 861, 863 (S.D.1983). The absence of the defendant from the state must be coupled with the plaintiffs inability to pursue his remedy because of the absence. Id. (citations omitted.)

[¶ 16.] Where provision is made by statute for substituted services of process, the provision makes the defendant as amenable to process as if he resided within the state and has the effect of nullifying any statute suspending the period of limitations. Id. at 863-64 (citing Busby v. Shafer, 75 S.D. 428, 66 N.W.2d 910 (1954)).

[¶ 17.] Service by publication is not available in all civil cases but may be used in the actions and circumstances specifically described in SDCL 15-9-8 to 15-9-15, inclusive. Service by publication was granted to Openhowski pursuant to SDCL 15-9-13. The statute allows a summons to be served by publication “where the defendant, being a resident of this state, has departed therefrom ... to avoid the service of a summons or keeps himself concealed therein with like intent.” Thus, the statute allowed Openhowski to serve Alex despite his absence from the state. Substituted service by publication could have been made in Alex’s absence sufficient to confer the jurisdiction required to support a personal judgment. See Burke, supra. Thus, under the facts of this case SDCL 15-2-20 did not toll the statute of limitations and the limitations period expired November 17,1998.

[¶ 18.] There are no issues of material fact. We find that Openhowski failed to commence his personal injury claim within the time required by the applicable statutes of limitation.

[¶ 19.] Because of our resolution of this issue, we need not address the second issue raised by Grinnell.

[¶ 20.] The decisions of the trial courts denying summary judgment are reversed. The cases are remanded with instructions that a judgment dismissing each case be entered in favor of Alex and Grinnell.

[¶ 21.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

[¶ 22.] BASTIAN, Circuit Judge, for SABERS, Justice, disqualified.

       SDCL 15-2-31 provides:
      An attempt to commence an action is deemed equivalent to the commencement thereof when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them, usually or last resided; or if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. Such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days.


author: AMUNDSON, Justice.

text:
    2000 SD 81
    Debra L. KERMMOADE, Claimant and Appellee, v. QUALITY INN, Employer and Appellant, and Perkins Family Restaurant/Club Valotte, Employers and Appellees, and St. Paul Fire & Marine Ins. Co., Insurer and Appellant. and Wausau Insurance Company, Insurer and Appellee.
    Nos. 21146, 21178.
    Supreme Court of South Dakota.
    Argued Feb. 16, 2000.
    Decided June 21, 2000.

      William Jason Groves, Margo Tschetter Julius of Groves, Julius & Simpson, Rapid City, South Dakota, Attorneys for appellee Kermmoade.
    Gregory G. Strommen, Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell and Carpenter, Rapid City, South Dakota, Attorneys for appellants.
    Craig A. Pfeifle of Lynn, Jackson, Shultz and Lebrun, Rapid City, South Dakota, Attorneys for appellees Perkins/Club Val-otte and Wausau Insurance Company.
   AMUNDSON, Justice.

[¶ 1.] Quality Inn and its workers’ compensation insurer, St. Paul Fire & Marine Insurance Company (StPaul) appeal the circuit court’s affirmance of the Department of Labor’s (Department) granting of summary judgment in favor of Debra Kermmoade (Kermmoade). Perkins Family Restaurant (Perkins) and Wausau Insurance Company (Wausau) filed a notice of review as to whether the referee erred in refusing to grant summary judgment in their favor because the issue was moot. We affirm in part, reverse and remand in part.

FACTS

[¶ 2.] Kermmoade, a/k/a Debra Richter, became employed as a bartender at the Club Valotte in Rapid City, South Dakota in 1988. Club Valotte is a hotel bar/lounge located in the Ramada Inn hotel. In addition to the Club Valotte, Perkins restaurant, which was owned by Omega Foods, Inc., also adjoins the Ramada Inn. The Ramada Inn was owned and operated by the Retsel Corporation (Retsel). Retsel leased the Club Valotte lounge property to Don LaChapelle and the Perkins property to Omega Foods. Retsel also owned another hotel called the Quality Inn. Quality Inn was insured by St. Paul, Perkins was insured by Wausau, and LaChapelle did not have insurance on Club Valotte.

[¶ 3.] On December 8, 1988, Kermmoade slipped and fell on ice while carrying out garbage during her employment with Club Valotte. Kermmoade reported her injury to her direct supervisor Jackie Vanden-Hoek (VandenHoek), who was the manager of both Club Valotte and Perkins. Kermmoade was told by VandenHoek to obtain an injury report from the front desk of the hotel. Kermmoade completed the injury form and returned it to Vanden-Hoek. On January 10, 1989, Elizabeth Massa (Massa), the sales manager for Ret-sel, prepared an “Employer’s First Report of Injury” and forwarded the report to St. Paul, the insurer of Quality Inn. Massa’s report stated that Kermmoade’s employer was “Club Valotte — Retsel Corporation.” Neither VandenHoek nor Kermmoade reviewed Massa’s report before she sent it to St. Paul.

[¶ 4.] On February 14, 1989, St. Paul claim representative Sheri Dowden (Dow-den) and Kermmoade signed an “Agreement as to Compensation (agreement),” which had been drafted by St. Paul. In the agreement, St. Paul had listed Kerm-moade’s employer as “Quality Inn” not “Club Valotte.” Neither Kermmoade nor Dowden caught the error prior to the signing.

[¶ 5.] A memorandum of the agreement was filed with the Department of Labor (Department) pursuant to SDCL 62-7-5. Department did not disapprove the agreement; therefore, after twenty days, it was approved by operation of law and was enforceable. St. Paul has made workers compensation benefit payments to Kerm-moade under this agreement since its approval.

[¶6.] On January 31, 1995, six years after Kermmoade first began receiving benefits from St. Paul, she filed a petition for hearing with Department seeking odd lot benefits as a result of .the worsening of her 1988 work-related accident. St. Paul and Quality Inn filed their answers admitting that Kermmoade was an employee of Quality Inn. Approximately one and one-half years later, Quality Inn and St. Paul filed an amended answer claiming that Club Valotte and Perkins were the actual employer and Perkins’ insurer, Wausau, was the insurer liable for Kermmoade’s workers’ compensation benefits. Kerm-moade subsequently opposed the amended answer claiming that the agreement was “res judiciata.” Department allowed the amended answer and Perkins, Club Val-otte and Wausau were added as parties in this action.

[¶ 7.] Quality Inn and St. Paul moved for summary judgment claiming that Kerm-moade was not an employee of Quality Inn. Kermmoade filed a cross-motion for partial summary judgment on the employment status. Perkins and Wausau also filed a motion for summary judgment: Department denied Quality Inn’s and St. Paul’s motion, but granted Kermmoade’s on the basis that the agreement was “res judica-ta” as to compensability and employee status. Department also denied Perkins’ and Wausau’s motion on the grounds that based upon its disposition of the employment status issue, it was moot. The decision was appealed to the circuit court, Seventh Judicial Circuit, Pennington County, South Dakota, and was affirmed.

[¶ 8.] Quality Inn and St. Paul appeal, raising the following issues:

1. Whether Department’s Form 110 Agreement as to Compensation is res judicata as to Kermmoade’s status as an employee even though an insurer’s consent was given under an undisputed' mistake of fact.
2. Does Department have jurisdiction to determine insurance coverage issues in this matter.'

[¶ 9.] Perkins, Wausau and Club Valotte filed a notice of review;, raising the following issue:

3. Whether Department erred in refusing to grant summary judgment to Perkins and Wausau, when all parties agree that Perkins and Wausau are not appropriate parties in this action.

STANDARD OF REVIEW

[¶ 10.] It is well settled ’ that “[o]ur standard of review from decisions of administrative agencies is governed by SDCL 1-26-37.” Helms v. Lynn’s, Inc., 1996 SD 8, ¶ 9, 542 N.W.2d 764, 766. This statute provides:

An aggrieved party or.the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

SDCL 1-26-37 (1992). Under this standard, “[t]his Court ‘makes the same review of the- administrative agency’s decision as did the circuit court, unaided by any presumption that the circuit court’s decision was correct.’ ” Cheyenne River Sioux Tribe Tel. Auth. v. Public Util. Comm. of South Dakota, 1999 SD 60, ¶ 12, 595 N.W.2d 604, 608 (quoting Zoss v. United Bldg. Ctrs., Inc., 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843 (citations omitted)). When the issue is a question of fact, we review the agency’s actions under the clearly erroneous standard. Id. (quoting Zoss, 1997 SD 93, ¶ 6, 566 N.W.2d at 843 (citing Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986))). Issues involving questions of law are fully reviewable by this Court. Id. (quoting Zoss, 1997 SD 93, ¶ 6, 566 N.W.2d at 843 (citing Matter of State & City Sales Tax Liab., 437 N.W.2d 209 (S.D.1989))). Further, “ ‘[m]ixed questions of law and fact are also fully reviewable.’” Id. (quoting Zoss, 1997 SD 93, ¶ 6, 566 N.W.2d at 843 (citing Permann v. Department of Labor, Unemp. Ins. Div., 411 N.W.2d 113 (S.D.1987))).

[¶ 11.] Our standard of review for summary judgments is also well settled:

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

Zuke v. Presentation Sisters, Inc., 1999 SD 31, ¶ 14, 589 N.W.2d 925, 928 (quoting Greene v. Morgan, Theeler, Cogley & Petersen, 1998 SD 16, ¶ 6, 575 N.W.2d 457, 459 (citations omitted)). Further, “[i]f-there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.” Id. (citing Mack v. Kranz Farms, Inc., 1996 SD 63, ¶ 8, 548 N.W.2d 812, 814).

DECISION

[¶ 12.] 1. Whether Department’s Form 110 Agreement as to Compensation is res judicata as to Kermmoade’s status as an employee even though an insurer’s consent was given under an undisputed mistake of fact.

[¶ 13.] In Department’s decision, the administrative law judge (ALJ) found that the 1989 agreement between Kermmoade and St. Paul was “just that - an agreement.” The ALJ relied on Whitney v. AGSCO Dakota, 453 N.W.2d 847 (S.D.1990) and found “ ‘[a]n agreed stipulation entered into between employer and employee, which is filed and approved by Department, may have the effect of a final determination.’” Under Whitney, therefore, the ALJ found “that the matters agreed in such agreements are res judica-ta." (Emphasis in original.) The ALJ noted that while Perkins/Club Valotte and Wausau may have been legally responsible for paying benefits to Kermmoade, the 1989 Agreement placed the responsibility towards Kermmoade on Quality Inn and St. Paul.

[¶ 14.] On appeal, the circuit court found that “the Agreement as to Compensation entered into between the parties Quality Inn, [St. Paul] and [Kermmoade], ... is res judicata as to all issues contained therein including the employer/employee relationship.” (Emphasis in original.) The circuit court found that Larsen v. Sioux Falls School Dist., 509 N.W.2d 703 (S.D.1993) and Whitney applied in this case to resolve this issue.

[¶ 15.] Quality Inn and St. Paul do not dispute that the Form 110 compensation agreements by Department have the same effect as adjudicated awards. Instead, they contend that the naming of the wrong employer constitutes a mistake of fact and a Form 110 Agreement for Compensation may be set aside upon a showing of a mistake of fact. In support of this argument, they cite Sopko v. C & R Transfer Co., Inc., 1998 SD 8, 575 N.W.2d 225, which discussed compromise agreements under SDCL 62-7-5 being given the same force as adjudicated awards. St. Paul argues that in Sopko, this Court held that “ ‘besides fraud and misrepresentation, “equitable grounds” may be sufficient to set aside a release.’ ” St. Paul further claims that “equitable grounds” is a sufficient basis to set aside the prior agreement because there was a mistake of fact.

[¶ 16.] In Sopko, claimant was severely injured when a bursting split-rim from a truck tire struck him in the head. 1998 SD 8, ¶ 2, 575 N.W.2d at 226. The workers’ compensation insurer paid his medical expenses and temporary total disability benefits for six months while he was unemployed. Approximately two years later, Sopko attempted to petition Department for additional workers’ compensation benefits; however, the parties ultimately entered into an agreement compromising all claims and releasing the insurer and employer from paying any expenses that may be incurred in the future. Thirteen years later, Sopko filed a petition with Department for additional compensation. After a hearing before Department, the agreement was set aside because “Sopko demonstrated a substantial, and unforeseen, post-release, physical change of condition.” Id. ¶ 5, 575 N.W.2d at 227. On appeal, this Court noted that “[o]rdinarily, workers’ compensation awards whether by agreement or adjudication are final unless the Department reserves jurisdiction.” Id. ¶ 9, 575 N.W.2d at 229 (citations omitted). Further, we noted that “we have recognized in various circumstances an abiding exception to the general rule of finality.... As early as 1921 this Court held that besides fraud and misrepresentation, ‘equitable grounds’ may be sufficient to set aside a release.” Id. ¶ 10, 575 N.W.2d at 229.

[¶ 17.] St. Paul’s reliance on Sopko is misplaced. A review of Sopko and the cases cited therein, reveal that they all dealt with the setting aside of a release based upon foreseeability of future injuries; that is not the question at issue we are facing in this case. See Mills v. Spink Elec. Coop., 442 N.W.2d 243, 245-46 (S.D.1989) (holding the waiver ineffective because claimant’s “medical condition could not have been anticipated or . foreseen at the time he executed the settlement”); Novak v. C.J. Grossenburg & Son, 89 S.D. 308, 316, 232 N.W.2d 463, 467 (1975) (concluding that when the consequences of an injury are newly discovered after the release is signed, the release may be set aside); Chittenden v. Jarvis, 68 S.D. 5, 11, 297 N.W. 787, 789-90 (1941) (holding that discovery of a disability after a workers’ compensation award is entered will not justify reopening). Further, Sopko is distinguishable from the present case because Sopko dealt with “[a]nalyzing SDCL 62-7-33 and 62-3-18 together” to determine whether “our Legislature intended to disallow agreements foreclosing statutory rights to reopen in the event of changes in condition resulting from undiscovered or unforeseen consequences.” See Sopko, 1998 SD 8, ¶ 13, 575 N.W.2d at 231. This case involves an insurer who is now trying to obtain relief for an inadequate investigation of a claim conducted prior to settlement.

[¶ 18.] St. Paul further contends that Iowa Loan & Trust Co. v. Schnose, 19 S.D. 248, 103 N.W. 22, 24 (1905) (quotation omitted), applies. There we held:

No principle of equity is more firmly settled than that relief will be granted from the consequences of a mistake of fact, provided that such mistake is in reference to a fact material to the transaction, and was not occasioned by the party’s own neglect of a legal duty. There is no doubt of this general rule.... It may be either a mistake as to a fact past or present, arising from unconscious ignorance or forgetfulness, or a mistake occasioned by a belief in the past or present existence of a fact. Under all circumstances, in order to obtain equitable relief, the mistake must have been unintentional.

St. Paul claims that they neither investigated nor had reason to investigate the issue of Kermmoade’s employment status. In addition, “ ‘[a] mistaken party’s fault in faking to know or discover the facts before making the contract does not bar him from avoidance ... unless his fault amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.’ ” LPN Trust v. Farrar Outdoor Adver., 1996 SD 97, ¶ 13, 552 N.W.2d 796, 799 (quoting Knudsen v. Jensen, 521 N.W.2d 415, 420 (S.D.1994) (quoting Restatement (Second) of Contracts § 157 (1982))).

[¶ 19.] We have often stated that once an agreement is accepted under the statute, the parties are bound to it. See SDCL 62-7-5; Larsen, 509 N.W.2d at 708; Whitney, 453 N.W.2d at 850; Call v. Benevolent & Protective Order of Elks, 307 N.W.2d 138, 139 (S.D.1981). In Larsen, we noted that,

a settlement of a compensation claim which is properly approved per SDCL 62-7-5 operates as an adjudication of the facts agreed upon in the settlement including the employer’s obligation to pay compensation. [Citation omitted.] Thus, a matter may not be later reopened absent an express reservation of jurisdiction by Department or a change in the employee’s physical condition which change is a result of his working injury.

509 N.W.2d at 708 (emphasis added).

[¶ 20.] In the present case, Kermmoade merely signed the agreement which was drafted by St. Paul. She did not intentionally mislead St. Paul, but instead, timely filled out the injury report received from the hotel and returned the completed report to her supervisor. An “Employer’s First Report of Injury” was subsequently filled out by the hotel and sent to St. Paul. After the report was filed, St. Paul drafted the settlement agreement without any further investigation into the matter. The agreement was properly forwarded to Department for review and was ultimately accepted. It is undisputed that Club Val-otté was in the Ramada Inn and not the Quality Inn. Even the most scant of investigations by St. Paul could have determined that their insured, Quality Inn, did not have a Club Valotte on its premises. Despite St. Paul’s lack of investigation, they argue that the agreement should be set aside on “equitable grounds.” Eleven years after an accident, an innocent injured employee should not be forced to pay for an insurer’s unilateral mistake. Regardless of whether St. Paul made a mistake, they drafted and entered into a binding agreement and the question of whether they are obligated to compensate Kermmoade is res judicata. The circuit court properly applied the law of South Dakota to the present case and granted summary judgment in favor of Keim-moade.

[¶ 21.] 2. Does the Department have jurisdiction to determine insurance coverage issues in this matter.

[¶ 22.] In the present case, Department held:

Having determined that Quality Inn and St. Paul are responsible for [Kerm-moade’s] worker’s compensation benefits it follows that Perkin’s Family Restaurant/Club Valotte and Wausau are not responsible to [Kermmoade] for those benefits. In reality, Perkin’s Family RestauranVClub Valotte and Wausau may have been legally responsible for those benefits. However, by voluntarily entering into the 1989 Agreement, Quality Inn and St. Paul undertook that responsibility to [Kermmoade]. Resolution of any remaining dispute between those two insurers is not properly within the jurisdiction of the Department of Labor. (Emphasis in original.)

[¶ 23.] St. Paul argues that Department has jurisdiction “to join other parties who may be liable for Kermmoade’s benefits; it already did so with [Perkins] and Wausau.” St. Paul contends that Department had authority to resolve the dispute between St. Paul and Wausau because “Department may perform ‘any’ act ‘necessary’ to perform its quasi-judicial functions ... with every ‘implied power’ necessary to effectuate all .of its ‘express powers.’ ” See Romey v. Landers, 392 N.W.2d 415, 419 (S.D.1986). St. Paul claims that Department has the “inherent power to bring an additional party, into a case whenever necessary for the ‘complete administration of justice.’ ” See Lambertson v. Westerman, 200 Minn. 204, 273 N.W. 634, 635 (1937) (quotation omitted).. Finally, St. Paul contends that “[e]ven if Quality Inn is bound by the mistaken Form 110 to acknowledge Kermmoade as an employee, it must be allowed to join her true employers in the workers’ compensation proceeding to share in their joint liability.”

[¶ 24.] Since we have already determined that St. Paul is bound to provide workers’ compensation benefits to Kermmoade, the question now is whether Department has jurisdiction to determine whether any other workers’ compensation insurer is liable to St. Paul for workers’ compensation benefits based upon being Kermmoade’s “true employer.” In Medley v. Salvation Army, Rapid City Corps., 267 N.W.2d 201 (S.D.1978), this Court was faced with a dispute between two insurers as to the amount of each insurer’s liability. In Medley, the Salvation Army obtained a workers’ compensation policy from Aetna Life & Casualty Company (Aetna) for the policy year of October 1970 through October 1971. Upon expiration of this policy an audit was conducted to determine the premium amount for that year. The audit revealed that the Salvation Army already had another separate policy with Western Surety Company (Western) covering the Rapid City, South Dakota area; therefore, no coverage by Aetna was required for that area. On June 9, 1972, Medley, an employee of Salvation Army, was killed in a flood in Rapid City. Western admitted coverage for the claim, but contended that Aetna was also liable for coverage and contribution to the claim. The question as to liability between Aetna and Western was submitted to the deputy director of the Division of Labor and Management Relations. The director found in favor of Aetna and Western appealed to the circuit court. Aetna subsequently appealed the circuit court’s reversal of the director’s ruling.

[¶ 25.] On appeal, this Court noted that “[i]t is clear from the petition and all of the other papers before the deputy director of the Division of Labor and Management Relations that the only issue was whether [Western] and [Aetna] were equally liable to [Medley’s widow.]” Id. at 203. We held that “[u]pon the narrow issue presented, the deputy director of the Division of Labor and Management Relations of the Department of Labor was without jurisdiction to hear and determine the petition of [Western]!.]” Id. .This Court concluded that “the proper rule to be applied” is identified in Larson’s Workmen’s Compensation Law § 92.40:

The general rule appears to be that, when it is ancillary to the determination of the employee’s right, the compensation commission has authority to pass upon a question relating to the insurance policy, ... This is, of course, in harmony with the conception of compensation insurance as being something more than an independent contractual matter between insurer and insured.
On the other hand, when the rights of the employee in a pending claim are not at stake, many commissions disavow jurisdiction and send the parties to the courts for relief This may occur when the question is purely one between two insurers, one of whom alleges that it has been made to pay an undue share of an award to a claimant, and the award itself is not being under attack. [Footnote omitted.]

Id. (emphasis added). Further, “[t]he proper forum for a suit by [Western] against [Aetna] is in the circuit court, which has jurisdiction to determine questions of contribution, indemnity or subro-gation raised by the respective insurers.” Id.

[¶ 26.] Based upon our prior decision in Medley, the Department is without jurisdiction to hear the dispute solely between two insurers and employers. The proper forum for such a dispute is with the circuit court. Further, “[t]his Court has the inherent power — and the duty — to see that 'the administration of justice is fair.” See Fullmer v. State Farm, Ins. Co., 514 N.W.2d 861, 868 (S.D.1994) (Henderson, J., concurring in part, dissenting in part). While St. Paul is legally bound to pay Kermmoade workers’ compensation benefits under the agreement, it is only fair that St. Paul have the opportunity to prove who the true employer is and seek contribution from that employer for the benefits St. Paul owes Kermmoade. It is within this Court’s discretion to remand this action to the circuit court with instructions to determine separately this issue because the jurisdiction to determine the issue is with the circuit court.

[¶ 27.] There is no doubt that Kerm-moade is entitled to recover workers’ compensation benefits from St. Paul and Quality Inn based upon their written agreement. Whether St. Paul and Quality Inn can prove Perkins and Wausau were the “true employers” and therefore, liable to St. Paul and Quality Inn for contribution, has yet to be determined. We reverse and remand this case back to the circuit court to determine whether St. Paul is entitled to any recovery or contribution from a third party.

[¶ 28.] Based upon the above disposition, we need not address the last issue.

[¶ 29.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . At the time this action commenced, LaCha-pelle was deceased.

      . Kermmoade’s injury consisted of a twisted right knee resulting in a torn ligament and cartilage.

      . Under SDCL 62-7-5, prior to its 1991 amendment, the statute provided:
      If the employer and employee reach an agreement in regard to the compensation under this title, a memorandum thereof shall be filed with the department by the employer or employee, and unless the department shall, within twenty days, notify the employer and employee of its disapproval of the agreement by registered or certified letter sent to their addresses as given in the memorandum filed, the agreement shall stand as approved and be enforceable for all purposes under the provisions of this title.

      . It should be noted that the agreement entered into between Kermmoade, Quality Inn and St. Paul was not actually a Form 110 Agreement drafted by Department. Instead, the agreement was drafted by St. Paul and entitled "Agreement as to Compensation.” The referee identified this distinction when he stated that "[t]he 1989 agreement is essentially identical to the [Department's] Form 110 (as it existed at that time).”

      . Kermmoade argues that "St. Paul should be estopped from revisiting the 110 Agreement in this case." In support of her argument, Kermmoade cites Tulsa Rig, Reel & Mfg. Co. v. Millsap, 619 P.2d 625 (Okla.1980). In Tulsa Rig, employer’s insurer paid Millsap temporary total disability benefits for approxi- ■ mately 300 weeks. Millsap later petitioned for permanent and total disability at which time, employer realized that Millsap may have been a "loaned servant" on the day of the accident. Employer was not allowed to amend his answer and assert Millsap was not an employee. On appeal, the Oklahoma Supreme Court found that the employer was estopped from denying the employment status of Millsap and was bound by the stipulated mistakes it had made due to the lack of a thorough investigation. In discussing equitable estoppel, we have previously noted that,
      "false representations or concealment of material facts must exist; the party to whom it was made must have been without knowledge of the real facts; th[e] representations or concealment must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied thereon to his prejudice or injury. There can be no estoppel if any of these essential elements are lacking, or if any of them have not been proved by clear and convincing evidence.”

        Heupel v. Imprimis Technology, Inc., 473 N.W.2d 464, 466 (S.D.1991) (quoting L.R. Foy Constr. Co., Inc. v. South Dakota State Cement Plant Comm'n, 399 N.W.2d 340, 344 (S.D.1987) (citing Taylor v. Tripp, 330 N.W.2d 542, 545 (S.D.1983))) (alteration in original). Clearly, some of the elements for estoppel are lacking in this case. Based upon our disposition of issue one, we need not address the estoppel argument.

      . This Court expresses no opinion on any defenses involving the merits which might be raised on remand.