author: Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Robert M. LIGHT, a Minnesota Attorney, Registration No. 214978.
    No. A07-2128.
    Supreme Court of Minnesota.
    Nov. 30, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action seeking reciprocal discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR), based on an order of the North Dakota Supreme Court temporarily suspending respondent from the practice of law on allegations that respondent failed to communicate with clients, failed to perform services, arrived late and unprepared for a jury trial, and received a settlement of a personal injury matter by check made out to respondent and his client, unbeknownst to the client, and based on respondent’s subsequent guilty plea to a felony charge of terrorizing and a misdemeanor charge of carrying a concealed firearm, in violation of Minn. R. Prof. Conduct 1.8, 1.4, 1.15, and 8.4(b). The Director alleges that the facts of the petition demonstrate that continuation of respondent’s authority to practice law poses a substantial threat of serious harm to the public within the meaning of Rule 16(a), RLPR, and warrants respondent’s temporary suspension from the practice of law.

The Director and respondent have entered into a stipulation under which respondent, without admitting the allegations of the petition, waives the right to contest the temporary suspension and agrees to the immediate issuance of an order for temporary suspension pending the completion of these disciplinary proceedings.

This court has independently reviewed the file and approves the parties’ stipulation.

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

IT IS HEREBY ORDERED that, effective as of the date of entry of this order, respondent Robert M. Light is temporarily suspended from the practice of law pending final determination of these disciplinary proceedings, pursuant to Rule 16(a), RLPR. Respondent shall fully comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).

BY THE COURT:

Helen M. Meyer Associate Justice


source: Caselaw Access Project

author: SHUMAKER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Justin Allen KILMER, Appellant.
    No. A06-2052.
    Court of Appeals of Minnesota.
    Nov. 20, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Ronald I. Galstad, Galstad, Jensen & McCann, P.A., East Grand Forks, MN, for respondent.
    Thomas V. Omdahl, Omdahl Law Office, Grand Forks, ND, for appellant.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

SHUMAKER, Judge.

Justin Allen Kilmer appeals from a DWI conviction, arguing that because the arresting officer’s only reason for stopping him was that he entered an intersection while the controlling traffic light was yellow, that officer lacked articulable suspicion of criminal activity justifying the stop. The district court held that Minnesota law prohibits drivers from entering an intersection when a traffic light is yellow, and on this basis found the officer’s stop was legal. Because we conclude that the district court erred in its reading of the applicable statute, we reverse.

FACTS

In reviewing appellant Justin Allen Kil-mer’s convictions of driving while impaired and test refusal after a Lothenbach trial, we are asked to determine whether entering an intersection on a yellow traffic signal provides a proper legal basis for a police officer to stop a motor vehicle.

The undisputed dispositive facts show that, at 2:12 a.m. on March 18, 2006, a police officer was parked at an intersection controlled by traffic semaphores in East Grand Forks. The officer watched Kil-mer’s car enter the intersection while the traffic light for his direction of travel was displaying a steady yellow.

The officer stopped Kilmer and noticed that he smelled strongly of alcohol. After Kilmer failed several field-sobriety tests and a preliminary breath test, the officer arrested him for driving while impaired and charged him with that offense. When Kilmer refused to submit to further testing, he was charged with that offense as well.

The district court rejected Kilmer’s challenge of the legality of the stop, concluding that the officer “had probable cause to detain [Kilmer] because [Kilmer] had committed a traffic violation.” Relying on a traffic statute and a state supreme court case, the court ruled that Kilmer “could not have entered the intersection lawfully if evidence indicates that he entered the intersection under the yellow warning light.”

Kilmer contends that the court’s conclusion of law is erroneous because it is not illegal to enter an intersection on a yellow warning light.

ISSUE

Did the district court err by ruling that a police officer had a legally sufficient basis for stopping appellant’s motor vehicle when the sole driving conduct the officer observed was appellant’s entry into an intersection controlled by traffic semaphores while the signal for appellant’s direction of travel was a steady yellow?

ANALYSIS

A law-enforcement officer is permitted to conduct a limited investigatory stop of a motor vehicle if the officer has an objectively reasonable and articulable basis for suspecting the motorist of criminal activity. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981)). Even an insignificant violation of a traffic law can suffice to provide a basis for a legal stop. State v. George, 557 N.W.2d 575, 578 (Minn.1997).

When a stop is premised on an ostensible violation of a traffic law, a mistaken interpretation of that law cannot provide the requisite objective basis for suspecting the motorist of criminal activity, as the Minnesota Supreme Court has held: “Therefore, we hold that an officer’s mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity to justify a traffic stop.” State v. Anderson, 683 N.W.2d 818, 823-24 (Minn.2004). This holding applies even if the officer believes, in good faith, that the driving conduct that prompted the stop was illegal. Id. at 824.

We review the district court’s determination of the legality of a traffic stop de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn.2000).

The statute on which the district court relied in concluding that Kilmer violated a traffic law when he entered the intersection on a yellow light is Minn.Stat. § 169.06, subd. 5(a)(2)(i) (Supp.2005), which provides that “[vehicular traffic facing a circular yellow signal is thereby warned that the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular traffic must not enter the intersection.... ”

Subdivision 5(a)(2)® is one of three directly relevant “traffic-control signal” laws, all found in subdivision 5. Subdivision 5(a)(l)(i) treats the issue of a green light, stating that “[vjehicular traffic facing a circular green signal may proceed straight through or turn right or left....” And subdivision 5(a)(3)(i) deals with a steady red light, providing that “[vjehicular traffic facing a circular red signal alone must stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection.... ”

In concluding that Kilmer violated a traffic law by entering the intersection on a yellow light, the district court erred in two respects. First, the court relied on a case that applied a “yellow-light” statute in effect in 1944, but not in effect at the time of Kilmer’s arrest. The court relied on Flitton v. Daleki, 216 Minn. 549, 551, 13 N.W.2d 477, 478 (1944), and quoted its holding that Minn.Stat. § 169.06, subd. 5(b)(1), “prohibits entering an intersection after the yellow or caution light is shown.” The version of the yellow-light statute in effect when Flitton was decided contained this prohibitory language: “Yellow alone, or ‘Caution,’ when shown following the green or ‘Go’ signal — (1) Vehicular traffic facing the signal shall stop before entering the nearest crosswalk at the intersection, but vehicles within the intersection may be driven cautiously through the intersection.” Minn.Stat. § 169.06, subd. 5(b)(1) (1941).

Subdivision 5(b)(1) was amended during the 1947 legislative session, and codified in 1949, to delete the mandate that traffic shall not enter an intersection on a yellow light and to replace it as follows: “Vehicular traffic facing the signal is thereby warned that the red or ‘Stop’ signal will be exhibited immediately thereafter and such vehicular traffic shall not enter or be crossing the intersection when the red or ‘Stop’ signal is exhibited.” Minn.Stat. § 169.06, subd. 5(b)(1) (1949).

The subdivision has been amended three more times since 1947. A 1963 amendment, which was codified in the 1965 Minnesota Statutes, contained warning language that “[v]ehicular traffic facing a steady yellow signal is thereby warned that the related green movement is being terminated or that a red indication will be exhibited immediately thereafter when vehicular traffic shall not enter the intersection.” Id. (1965). Unlike the 1949 version, the 1965 version did not prohibit “crossing the intersection when the red or ‘Stop’ signal is exhibited.” Id. (1949). In 1969, an amendment retained the language of the 1963 amendment regarding the warning nature of a yellow light but added an exception for proceeding on a red light when a green arrow is exhibited. Id. (1969). Finally, in 2005, the legislature amended the subdivision again but retained all of the language of the 1969 version, except the word “shall” in the phrase “traffic shall not enter the intersection” on a red light was replaced by the word “must.” Minn.Stat. § 169.06, subd. 5(a)(2)© (Supp.2005).

Thus, the yellow-light statute in effect when Kilmer was arrested, and which is currently in effect, contains no prohibition against entering an intersection on a yellow light but rather discloses the meaning and the advisory-warning nature of that signal.

When a court is called upon to apply a statute to facts, the court must, of course, determine what the statute means. In doing so, the court must simply apply the statute as written when its meaning is plain and clear and free from ambiguity. Minn.Stat. § 645.16 (2006); U.S. Specialty Ins. Co. v. James Courtney Law Office, P.A., 662 N.W.2d 907, 910 (Minn.2003); State v. Soukup, 656 N.W.2d 424, 427 (Minn.App.2003), review denied (Minn. Apr. 29, 2003). Furthermore, statutory language must be viewed in its proper context. See Chiodo v. Bd. of Educ. of Special Sch. Dist. No. 1, 298 Minn. 380, 382, 215 N.W.2d 806, 808 (1974) (“[W]ords of a statute are to be viewed in their setting, not isolated from their context.”).

It is true that subdivision 5(a)(2)®, the yellow-light law, does not indicate expressly whether motorists must stop when a yellow signal is displayed or may continue into an intersection in the face of a yellow-light display. But that omission does not make the subdivision ambiguous, particularly when it is read in the context of its companion green-light and red-light laws. Those laws give the rules for the privilege of proceeding into an intersection and the mandate of stopping before entering the intersection. The yellow-light law is merely advisory, explaining the warning nature of that display. Subject to exceptions provided in the respective subdivisions, motorists can go on green and must not go on red and will receive a warning that a transition from the privilege to go to the mandate to stop is imminent. We find no ambiguity whatsoever in subdivision 5(a)(2)(i), and courts are not permitted to read ambiguities into laws in pursuit of a suggested spirit of the law. Minn.Stat. § 645.16; Mattice v. Minn. Prop. Ins. Placement, 655 N.W.2d 336, 341 (Minn.App.2002), review denied (Minn. Mar. 18, 2003).

Even if subdivision 5(a)(2)(i) might be viewed as ambiguous, making interpretation necessary and appropriate, the task then is to ascertain the legislative intent of the law. Minn.Stat. § 645.16; Conaway v. St. Louis County, 702 N.W.2d 779, 783 (Minn.App.2005); First Nat’l Bank of the N. v. Auto. Fin. Corp., 661 N.W.2d 668, 670 (Minn.App.2003), review denied (Minn. Aug. 5, 2003). Perhaps the history of the subdivision’s amendments is the very best indication of legislative intent. Initially, it was illegal to enter an intersection on a yellow light. Minn.Stat. § 169.06, subd. 5(b)(1) (1941). Then the legislature decided to delete that prohibition but added a prohibition against “crossing the intersection when the red or ‘Stop’ signal is exhibited.” Id. (1949). Impliedly that law allowed entry on a yellow light but virtually compelled a rapid traverse of the intersection to make it through before the light changed to red. Finally, the legislature enacted the version we have today, which penalizes neither an entry on yellow nor a failure to have completed the crossing before the red signal is displayed. By deleting prohibitory language in those two respects, the legislature evinced its intent not to prohibit such conduct. Thus, we hold that Minn.Stat. § 169.06, subd. 5(a)(2)® — the yellow-light traffic law— does not prohibit vehicles from entering an intersection after a steady yellow signal has been displayed. The district court erred in ruling otherwise, and the arresting officer, although without a doubt acting in good faith, was mistaken as to the meaning of the statute upon which he relied for articulable suspicion of criminal activity. Kilmer’s convictions must be reversed because the traffic stop that resulted in discovery of the evidence supporting those convictions was improper, and the evidence must be suppressed.

We do not intend to suggest that motorists in all circumstances have a carte blanche privilege to enter an intersection on a yellow light or that there might not be circumstances in which such entry could become illegal. The yellow-light law does not operate in isolation from other traffic laws regarding speed, vehicle control, caution with regard to weather and visibility, following other vehicles, lookout, attention, and numerous other traffic statutes and ordinances. The officer here cited no other driving conduct than Kilmer’s entry of the intersection on a yellow light and his failure to cross fully before the light changed to red. That conduct alone, as we hold, is not prohibited.

DECISION

Because we conclude that Minn.Stat. § 169.06, subd. 5(a)(2)© (Supp.2005), does not prohibit a driver’s entry into an intersection on a steady yellow traffic light, we reverse the district court’s determination that a police officer who stopped a car solely on that basis had a legally sufficient reason to make the stop, and we reverse the convictions resulting from the evidence obtained as a result of the stop.

Reversed.


author: DIETZEN, Judge.

text:
    In the Matter of the RISK LEVEL DETERMINATION OF J.V.
    No. A06-2286.
    Court of Appeals of Minnesota.
    Nov. 27, 2007.

      John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, Minneapolis, MN, for relator J.V.
    Lori Swanson, Attorney General, Angela Helseth Kiese, Assistant Attorney General, St. Paul, MN, for Minnesota Department of Corrections.
    Considered and decided by DIETZEN, Presiding Judge; RANDALL, Judge; and HALBROOKS, Judge.
   OPINION

DIETZEN, Judge.

In this certiorari proceeding, relator challenges an administrative law judge’s (ALJ) order dismissing his request for administrative review of his risk-level assessment under Minn.Stat. § 244.052, arguing that his right to review is unconditional and absolute. Because we conclude that the ALJ did not err in concluding that relator’s request for administrative review was moot, we affirm.

FACTS

In July 2001, relator was convicted of fourth-degree criminal sexual conduct and the district court sentenced him to 33 months in prison. Over the next two years, relator was released from prison subject to conditions on two occasions, but he was later arrested for violating the conditions and was reincarcerated. In November 2003, the department of corrections end-of-confinement review committee (ECRC) assigned J.V. a risk level III. J.V. filed a request for administrative review of the ECRC decision.

In January 2004, relator was conditionally released from the Minnesota Correctional Facility-Lino Lakes (MCF-LL), but was then civilly committed to the Minnesota Sex Offender Program (MSOP) and transferred to the Minnesota Security Hospital-St. Peter (MSH-St.Peter). Relator then requested that the ECRC proceed with a hearing on his request for administrative review of his risk-level determination.

During his civil commitment, relator was subject to conditions of release from prison, but he violated a condition and was returned to MCF-LL to complete his sentence. When his sentence expired in February 2007, he was returned to MSH-St. Peter under the civil commitment order. In August 2006, respondent moved to dismiss J.V.’s request for administrative review of the risk-level determination as moot. Following the submission of written arguments, the ALJ dismissed the request for review on the ground of mootness. This certiorari appeal follows.

ISSUE

Did the ALJ err as a matter of law in concluding that relator’s request for administrative review under Minn.Stat. § 244.052, subd. 6, is moot?

ANALYSIS

Relator argues that the ALJ erred in concluding that his request for administrative review under Minn.Stat. § 244.052 of the ECRC risk-level determination is moot. The issue of whether a cause of action is moot is a question of law, which we review de novo. Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn.App.2004), review denied (Minn. Apr. 4, 2005); see Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984) (reviewing court need not defer to agency decisions or expertise when reviewing agency’s legal determinations).

A. Applicability of Mootness Doctrine

Relator argues that the doctrine of mootness does not apply to a request for administrative review under the statute. This case arises under the community notification act (CNA), Minn.Stat. § 244.052 (2006), which protects communities from predatory offenders by requiring law enforcement to provide notice of an offender’s presence in a community. Minn.Stat. § 244.052, subd. 4. The statute provides that an offender has “the right to seek administrative review of an end-of-confinement review committee’s risk assessment determination,” which includes the right to a review hearing. Id., subd. 6. It is well established that the doctrine of mootness applies to judicial proceedings in Minnesota. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn.2005). Minn.Stat. § 244.052, subd. 6(d), provides that “[t]he review hearing is subject to the contested case provisions of chapter 14.” Under the rules adopted in accordance with chapter 14, an ALJ shall “recommend dismissal where the case or any part thereof has become moot.” Minn. R. 1400.5500(k) (2005). Thus, the doctrine of mootness applicable to judicial proceedings is equally applicable to review hearings conducted under Minn.Stat. § 244.052, subd. 6.

B. Mootness Requires Direct and Personal Harm

Relator argues that he will suffer direct and personal harm if the risk-level determination is not reviewed. Thus, relator argues that his appeal is not moot.

A court should exercise its jurisdiction to decide a matter only if there is a justiciable controversy. See Kahn, 701 N.W.2d at 821. A controversy is justicia-ble if it involves definite and concrete assertions of right. Id. Merely possible or hypothetical injury .will not satisfy this standard. Id. A matter may be dismissed as moot if an event occurs that resolves the issue or renders it impossible for the court to grant effectual relief. Isaacs, 690 N.W.2d at 376.

Mootness can be described as “the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Kahn, 701 N.W.2d at 821 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 708-09, 145 L.Ed.2d 610 (2000)). To show a personal interest, a party must demonstrate “a direct and personal harm.” Nordvick v. Comm’r of Pub. Safety, 610 N.W.2d 659, 662 (Minn.App.2000). If a party lacks the requisite personal interest and the court is unable to grant “effectual relief,” the issue raised is deemed to be moot and may be dismissed. Kahn, 701 N.W.2d at 821.

Relator argues that during his civil commitment, he is subject to community notification under Minn.Stat. § 244.052, subd. 4, and, therefore, his request for review is not moot. Respondent argued — and the ALJ agreed — that because MSH-St. Peter is a “residential facility” under Minn. Stat. § 244.052, subd. 1(4), community notification is prohibited, and, therefore, relator will suffer no harm arising out of his risk-level determination. We agree.

The interpretation of a statute is a question of law, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). When interpreting a statute, we give words their plain and ordinary meaning. Minn.Stat. § 645.08, subd. 1 (2006); All Metro Supply, Inc. v. Warner, 707 N.W.2d 1, 5 (Minn.App.2005).

Minn.Stat. § 244.052, subd. 4(b)(3), provides that law enforcement agencies shall not make any disclosure about the offender if “the offender is placed or resides in a residential facility,” A “residential facility” is “a facility that is licensed as a residential program” under section 245A.02, subd. 14. Id., subd. 1(4). Section 245A.02, subd. 14, defines a “residential program” as “a program that provides 24-hour-a-day care, supervision, food, lodging, rehabilitation, training, education, habilitation, or treatment outside a person’s own home.” Minn.Stat. § 245A.02, subd. 14 (2006). All residential programs are required to be licensed by the commissioner of human services, unless exempted by statute. Minn.Stat. § 245A.03 (2006). We conclude that the sex-offender program at MSH-St. Peter meets the definition of a “residential program.” MSH-St. Peter provides 24-hour-a-day care for those committed to the sex-offender program; the residents are supervised; the program provides food and lodging; and the focus of the program is on rehabilitating, training, habilitating, and treating sex offenders.

Relator suggests that because MSH-St. Peter is defined as a “secure treatment facility,” it cannot also be a “residential facility.” See Minn.Stat. § 253B.02, subd. 18a (2006) (“secure treatment facility” means the Minnesota Security Hospital and its sex-offender program). We disagree for several reasons. First, we see nothing in that statute that precludes MSH-St. Peter from satisfying both statutory definitions. More importantly, MSH-St. Peter clearly provides a “residential program” to its residents and, therefore, meets the definition of a residential facility. Because MSH-St. Peter meets the definition of a “residential facility” under Minn.Stat. § 244.052, subd. 1(4), community notification is prohibited by Minn.Stat. § 244.052, subd. 4(b)(3).

Relator argues that even if community notification is prohibited under the statute, he will suffer other harm arising from the risk-level assessment. But relator failed to make this argument before the ALJ. We decline to address matters raised for the first time on appeal. E.N. v. Special Sch. Dist. No. 1, 603 N.W.2d 344, 348 (Minn.App.1999). But even if we did reach this issue, we would conclude that relator’s argument is speculative and without merit. Relator has failed to establish any personal harm arising out of his risk-level determination. See Isaacs, 690 N.W.2d at 376 (“the doctrine of mootness looks towards actual occurrences, not mere speculation on events that could have happened”).

C. Capability of Repetition

Relator next argues that even if his request for administrative review is moot, the determination is capable of repetition and likely to evade review. Generally, a ease should not be dismissed on the ground of mootness if it implicates issues that are capable of repetition, yet evading review. Kahn, 701 N.W.2d at 821. But absent certification as a class action, this only applies “to the situation where two elements are combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975)).

Prior to his release from MSH-St. Peter, relator will have a new ECRC risk level determination that will trigger his right to request administrative review under the statute. Minn.Stat. § 244.052, subds. 1(1), 3. Thus, the ALJ correctly concluded that relator failed to establish a “reasonable expectation” that the next determination would evade administrative review.

DECISION

Under Minn.Stat. § 244.052, subd. 6, relator’s request for administrative review of an end-of-confinement risk-level determination is moot because he is civilly committed and not subject to community notification and, therefore, lacks the requisite personal interest in the outcome of the litigation. Consequently, the ALJ did not err in dismissing his request for administrative review.

Affirmed.


author: MARING, Justice.

text:
    2007 ND 184
    In the Matter of the ESTATE OF Mary M. EGELAND, Deceased. Monte Dean Egeland, Personal Representative of the Estate of Mary M. Egeland, Deceased, Petitioner and Appellee v. Ronald Egeland, Respondent and Appellant.
    No. 20070075.
    Supreme Court of North Dakota.
    Nov. 27, 2007.

      Michael Geiermann, Schulz Geiermann & Bergeson Law Offices, P.C., Bismarck, N.D., for petitioner and appellee.
    John J. Petrik (argued) and Kari R. Reichert (on brief), Vogel Law Firm, Bismarck, N.D., for respondent and appellant.
   MARING, Justice.

[¶ 1] Ronald Egeland appealed from a judgment approving a petition for allocation of funds by the personal representative of the estate of Mary M. Egeland, asserting the court erred in allowing the estate to offset Ronald’s inheritance by the amount the estate paid to satisfy a debt on a promissory note under which Ronald and Mary were co-makers. We hold the offset was in accordance with the law, and we affirm.

I

[¶ 2] Mary M. Egeland, the deceased, was the mother of five children, including Ronald. On September 30, 2003, Mary and Ronald, as joint obligors, executed a promissory note with Dakota Western Bank to borrow $236,084.92 for the purchase of land in Bowman County and to refinance a delinquent 2001 promissory note for the purchase of a tractor. Ronald owns the tractor, and the purchased property was ultimately placed in a trust under which Ronald is the sole beneficiary.

[¶ 3] Mary died on August 17, 2004. Under her will, her son, Monte Dean Ege-land, was appointed the personal representative. He subsequently used certificates of deposit, payable on Mary’s death to Ronald, as payment on the 2003 promissory note and also paid out of estate funds $205,083.53 as final payment on the note. The combination of these payments completely satisfied the debt on the note. The personal representative asked the district court to approve the allocation of estate funds, including a $205,083.53 offset against Ronald’s inheritance from the estate, effectively reimbursing the estate for the amount it paid to satisfy the 2003 promissory note. The court approved the allocation of estate funds and the offset against Ronald’s inheritance.

II

[¶ 4] Ronald asserts the district court erred in granting the estate an offset against his inheritance for payment by the estate on the 2003 promissory note, because Mary and Ronald had an oral agreement that the entire indebtedness under the note would be paid from “South Dakota oil royalty money” received by Mary.

[115] The district court essentially determined Ronald’s testimony that Mary had orally agreed to pay the entire indebtedness under the promissory note was not credible. With regard to this issue the court made the following findings of fact:

In 2001, Ron and Mary allegedly agreed that any loan to purchase the Bowman County land from the Monte A. Egeland Trust would be paid for by South Dakota oil royalty money paid to Mary. These mineral interests were owned solely by Mary. Pursuant to the verbal agreement, Ron would have no obligation to pay for the purchase of the Bowman County land. There was no written agreement or contract in this regard. .... The alleged oral contract between Ron and Mary in which Ron would have no financial obligation for repayment for the purchase of the Bowman County land as repayment was supposedly to come solely from Mary’s South Dakota oil royalty money is in direct conflict of Ron’s status as a joint obligor on the September 30, 2003 note.
.... The Court finds that Mary’s intention as to Ron’s obligation for repayment on the Dakota Western Bank loan is found in the September 30, 2003 note itself as Ron agreed to be a co-obligor.

[¶ 6] In actions tried without a jury, a district court’s findings of fact are governed by the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). In re Estate of Elken, 2007 ND 107, ¶ 4, 735 N.W.2d 842. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exits to support the finding, or if, on the entire record, we are left with a definite and firm conviction the trial court made a mistake. Id. We give due regard to the trial court’s opportunity to assess the credibility of the witnesses, and the court’s choice between two permissible views of the evidence is not clearly erroneous. Landers v. Biwer, 2006 ND 109, ¶ 20, 714 N.W.2d 476. The court found Mary’s intention that Ronald incur an obligation for payment of the debt was obvious on the face of the note under which Mary and Ronald were co-makers. The court also expressly found that Ronald’s testimony of a prior oral agreement between himself and Mary that she would be solely liable for any loan to purchase the property was inconsistent with the promissory note, and that testimony was disregarded by the court. We conclude there is evidence to support the district court’s findings on this issue and they are not clearly erroneous.

Ill

[¶ 7] Ronald argues in the alternative that he and Mary were jointly obligated as co-makers on the note to each pay one-half of the indebtedness for the purchase of the tractor and the property. According to the terms of the 2003 promissory note, Ronald and Mary Egeland were “jointly and severally” obligated on the loan.

[¶ 8] The right to contribution between joint obligors is provided under N.D.C.C. § 9-01-08:

A party to a joint obligation or to a joint and several obligation who satisfies more than that party’s share of the claim against all obligors may require a proportionate contribution from all the parties joined with that party.

Under this statute, Ronald asserts he and Mary were, as a matter of law, jointly liable to each pay one-half of the indebtedness. The estate asserts that under the statute “a proportionate contribution” from joint obligors depends upon the benefit received. The estate asserts it is entitled to a 100 percent contribution from Ronald, because he received the entire benefit of the loan proceeds when he obtained the tractor and all the property purchased with the borrowed money.

[¶ 9] This Court has not addressed the issue of what constitutes a proportionate contribution under N.D.C.C. § 9-01-08. The rule regarding contribution among comakers of a negotiable instrument is stated in 12 Williston on Contracts § 36:15, at 676 (4th ed.1999) (emphasis added):

In the absence of proof of a contrary-agreement, a comaker who is required to pay the entire obligation may seek contribution or reimbursement from the other comaker for one half of the amount paid. However, if it can be shown that the parties have by agreement made a different allocation as to their liability, or one of the comakers has received a disproportionate benefit from the transaction, then disproportionate contribution may be allowed.

Further explanation regarding contribution among co-obligors who have received unequal benefits is found in 18 Am.Jur.2d Contribution to Corporations § 22, at 34 (2004):

Since the right to contribution is inherently equitable in nature, it logically follows that where the co-obligors have received unequal benefits from the common obligation, the portion of the contribution that each must bear is according to the benefit that each has received. While, in the absence of proof to the contrary, it is presumed that all the co-obligors were benefited in equal degree by the consideration received, this presumption is subject to rebuttal by proof that there was actually an inequality of benefits received. Thus, where several persons borrow money jointly but it is established that, individually, they received unequal parts of that money, they are liable to contribute, not equally, but in proportion to the amounts actually received by them. An obligor who has received no benefit will not be forced to contribute.

[¶ 10] In construing a contribution statute substantively identical to ours, the California Court of Appeals, Fifth District, held that where business associates are directly liable on a business debt their shares of contribution among themselves are presumed to be proportionate to their ownership interest in the business. Jans v. Nelson, 83 Cal.App.4th 848, 100 Cal. Rptr.2d 106, 111 (2000). The court said an action to enforce the right of contribution is governed by equitable principles and begins with the fundamental principle that “[h]e who takes the benefit must take the burden.” Id. at 113. See also Beneficial Fin. Co. of New York, Inc. v. Husner, 82 Misc.2d 550, 369 N.Y.S.2d 975 (1975) (the rights and liabilities of co-makers on a promissory note, as between themselves, depend upon the contract between them and, absent a contrary agreement, the comakers are liable between themselves in proportion to the benefits received).

[¶ 11] In accord with the foregoing authorities, we conclude that it was appropriate for the district court to consider the benefit received by these joint obligors in determining a proportionate contribution between them under N.D.C.C. § 9-01-08.

[¶ 12] Ronald asserts Mary received benefit from the borrowed money because she was allowed to reside on the land purchased with the money and she also received benefit from negotiations Ronald conducted on her behalf regarding payments of oil royalty money from third parties. The district court did not find that these were “benefits” to Mary arising under the promissory note or from use of the borrowed money. Rather, the court found Ronald received 100 percent of the benefit from the promissory note, because Ronald received title and legal interest in the tractor and the land purchased with the borrowed money. There is record evidence to support the court’s findings on this issue, and we are not left with a firm and definite conviction the court made a mistake. We, therefore, conclude the trial court’s findings are not clearly erroneous.

[¶ 13] The district court allowed the personal representative of the estate to offset Ronald’s inheritance by the entire $205,083.53 the estate paid in satisfaction of the 2003 promissory note. By allowing this offset, the court effectively awarded Mary’s estate 100 percent contribution from Ronald under N.D.C.C. § 9-01-08 for the estate’s payment on the promissory note. We conclude the district court’s decision is in accordance with the law.

IV

[¶ 14] Judgment affirmed.

[¶ 15] GERALD W. VANDE WALLE, C.J., LAWRENCE A. LECLERC, S.J., DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.

[¶ 16] The Honorable LAWRENCE A. LECLERC, S.J., sitting in place of KAPSNER, J., disqualified.


author: PER CURIAM.

text:
    2007 ND 185
    In the Matter of the Application for REINSTATEMENT OF Elizabeth Jane SUNDBY. Elizabeth Jane Sundby, Petitioner v. Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent.
    No. 20070332.
    Supreme Court of North Dakota.
    Dec. 3, 2007.
   PER CURIAM.

[¶ 1] Elizabeth Jane Sunby was admitted to the practice of law in the State of North Dakota on October 6, 1987. Sundby was placed on interim suspension effective December 11, 2002, and until further order of the Court. See Disciplinary Board v. Sundby, 2002 ND 197, 654 N.W.2d 391. Thereafter, Sundby was placed on suspension for six months and one day, retroactive to her December 11, 2002, interim suspension. The Order provided Sundby must apply for reinstatement under N.D.R. Lawyer Discipl. 4.5. See Disciplinary Board v. Sundby, 2005 ND 135, 701 N.W.2d 863.

[¶ 2] On June 19, 2007, Sundby filed a Petition for Reinstatement and attached documents with the Disciplinary Board of the Supreme Court. The matter was assigned to a Hearing Panel of the Disciplinary Board, and after consideration of the Petition, evidence, post-hearing written arguments, and Affidavit of Costs and Expenses, the Hearing Panel filed its Report recommending Sundby’s reinstatement. The matter was referred to the Supreme Court under N.D.R. Lawyer Discipl. 4.5.

[¶ 3] In its Report, the Hearing Panel found that Sundby had been suspended for violation of N.D.R. Prof. Conduct 1.3, Diligence; 1.4, Communication; 1.15(b), Safekeeping Property; 1.16(e), Declining or Terminating Representation; and 8.1(b), Bar Admission and Disciplinary Matters, and further violated N.D.R. Lawyer Dis-cipl. 1.2(A)(8) and 3.1(D)(3). Sundby had been ordered to pay restitution to her clients plus the costs of the disciplinary proceeding.

[IF 4] The Hearing Panel found that Sundby has paid the restitution ordered by the Court and has paid the costs of her disciplinary proceedings. Further, the Hearing Panel found that Sundby had been suspended from the practice of law in Minnesota effective April 4, 2003, the basis of which was Sundby’s suspension in North Dakota; failure to maintain records of her trust account; failure to cooperate with the investigation of a complaint; failure to list a claim in bankruptcy for a client; and failure to pay a judgment entered against her in the bankruptcy proceeding.

[¶ 5] The Hearing Panel found that the Minnesota discipline was part of the misconduct resulting in Sundby’s North Dakota discipline, having occurred during the time she was neglecting client matters. Further, the Hearing Panel found that Sundby’s failure to cooperate in the investigation of a complaint and failure to pay a judgment against her resulted in informal discipline.

[¶ 6] The Hearing Panel found that at the time of Sundby’s discipline she suffered from undiagnosed bipolar disorder, which affected her ability to carry out her responsibilities to clients. The Hearing Panel also found that Sundby is currently on medication for her disorder, and with adjustments to her medication and case load, Sundby has been able to work productively as a paralegal for the Bredahl and Fisher law firm during the past two and one-half years.

[¶ 7] The Hearing Panel found that Sundby recognized the wrongfulness of the misconduct resulting in her suspension, and has maintained competence in the law by taking ninety hours of continuing legal education and through her employment with Bredahl and Fisher. The Hearing Panel also found that Sundby has not engaged or attempted to engage in the unauthorized practice of law during her suspension.

[¶ 8] Based on its findings, the Hearing Panel concluded Sundby has fully complied with the terms and conditions of all applicable disciplinary orders and rules; she recognizes the wrongfulness and seriousness of the misconduct for which she was suspended; she has not engaged in any other professional misconduct since her suspension; and she has the requisite honesty and integrity to practice law. The Hearing Panel also concluded Sundby’s subsequently diagnosed bipolar disorder contributed to the injury to her clients, and Sundby is now under treatment.

[¶ 9] The Hearing Panel concluded Sundby and her current employer recognize the need for parameters on Sundby’s practice to ensure that the public will be protected upon her return to practice. The Hearing Panel further concluded that Sundby’s reinstatement be with limitations in order to avoid a recurrence of the circumstances that lead to her suspension. The limitations include association with an experienced supervising lawyer and a continued course of treatment for Sundby’s bipolar disorder, and could be lifted upon application when the evidence demonstrates they are no longer needed.

[¶ 10] Based on its findings and conclusions, the Hearing Panel recommends Sundby be reinstated to the practice of law with the limitations that her practice be in association with an experienced supervising lawyer and she continue her treatment for bipolar disorder. The Hearing Panel further recommends Sundby pay the costs of the reinstatement proceeding in the amount of $1,966.75. The Court considered the matter, and

[¶ 11] ORDERED, the Report of the Hearing Panel is adopted.

[¶ 12] FURTHER ORDERED, Elizabeth Jane Sundby be reinstated to the practice of law in the State of North Dakota effective January 1, 2008, with the limitations that her practice be in association with an experienced supervising lawyer, and that she continue her course of treatment for bipolar disorder.

[¶ 13] FURTHER ORDERED, within 30 days from the entry of this Order, Elizabeth Jane Sundby must submit to the Clerk of the Supreme Court and to counsel for the Disciplinary Board the name of an experienced licensed North Dakota attorney, in good standing, who will be associated with Sundby’s practice of law and who will accept, in writing, the responsibility of acting as a supervising lawyer over Sund-by’s practice. The supervising lawyer must agree to monitor Sundby’s practice, and must agree to submit a written report once every six months to the Clerk of the Supreme Court and to counsel for the Disciplinary Board stating that the attorney has reviewed the status of Sundby’s case files and stating whether, in the attorney’s opinion with regard to those files, Sundby has acted in accordance with the North Dakota Rules of Professional Conduct, and that she has complied with all the limitations imposed by this Order.

[¶ 14] FURTHER ORDERED, Elizabeth Jane Sundby must pay the costs of the reinstatement proceeding in the amount of $1,966.75.

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

[¶ 16] The Honorable DANIEL J. CROTHERS, deeming himself disqualified, did not participate in this decision.


author: ZINTER, Justice.

text:
    2007 SD 110
    DAIRYLAND INSURANCE COMPANY, Plaintiff and Appellee, v. Brett JARMAN, Defendant and Appellant.
    No. 24461.
    Supreme Court of South Dakota.
    Argued on Aug. 28, 2007.
    Decided Oct. 31, 2007.
    Robert B. Anderson of May, Adam, Gerdes & Thompson, L.L.P., Pierre, South Dakota, Attorneys for plaintiff and appel-lee.
    Patrick M. Ginsbach of Farrell, Farrell & Ginsbach, P.C., Hot Springs, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Dairyland Insurance Company sought enforcement of a Wyoming default judgment obtained against Brett Jarman. The circuit court ordered enforcement over Jarman’s personal jurisdiction defense. We reverse and remand for a determination of whether Dairyland’s Wyoming counsel exercised due diligence in serving Jarman under that state’s nonresident automobile jurisdiction statute.

I.

[¶ 2.] In 2003, Jarman, a resident of South Dakota, was driving a car in Wyoming. Leona Farrell was a passenger. They unexpectedly encountered black ice, the vehicle slid off the road, and Farrell was injured. The Wyoming Highway Patrol investigated the accident, and Jar-man’s address was recorded in the accident report. That address was: P.O. Box 113, Hot Springs, SD 57747.

[¶ 3.] Farrell’s insurance company, Dairyland, paid her uninsured motorist benefits. It then brought suit against Jar-man in Wyoming to recover those benefits. Dairyland asserted personal jurisdiction under Wyoming’s non-resident automobile jurisdiction statute.

[¶ 4.] Pursuant to that statute, Dairy-land’s Wyoming counsel served the Wyoming Secretary of State with a summons, complaint and jury demand. He also mailed a copy of those documents to Jar-man by certified mail. Instead of sending the documents to Jarman’s P.O. Box address in Hot Springs listed on the accident report, however, Dairyland sent the documents to the following address: 502 8th Street, Edgemont, SD 57735. The documents were subsequently returned to Dairyland marked, “Refused.”

[¶ 5.] Jarman did not answer or appear in the Wyoming action, and Dairyland obtained a default judgment. Dairyland’s Wyoming counsel then filed the judgment with the Fall River County Clerk of Courts and sought to have it enforced. Jarman responded with an order to show cause “why the Filing of Foreign Judgment and Request for Writ of Execution should not be dismissed[.]” Jarman contended that although the envelope was marked “Refused,” he was out-of-state at the time and never received the documents. Both parties filed affidavits relating their factual positions. After a hearing, but without trial, the circuit court denied the motion to dismiss and granted enforcement of the judgment. Notwithstanding Jarman’s factual assertions, the circuit court concluded, “[t]o accept Jar-man’s argument in this case that Wyoming jurisdiction could be defeated by refusal of the certified mail from Dairyland does not constitute a proper application of the law under the circumstances which exist.”

[¶ 6.] Jarman appeals contending that the judgment is not subject to enforcement because the Wyoming court never obtained personal jurisdiction under the non-resident automobile statute. There is no dispute that if the rendering state did not have personal jurisdiction, South Dakota can not recognize the judgment. See Baldwin v. Heinold Commodities, Inc., 363 N.W.2d 191 (S.D.1985). This jurisdictional issue is a question of law that we review de novo. Grajczyk v. Tasca, 2006 SD 55 ¶8, 717 N.W.2d 624, 627.

II.

[¶ 7.] Wyoming’s procedure to obtain service of process over a non-resident motorist is found in Wyo. Stat. l-6-301(a). This statute provides, in relevant part:

The ... operation of a motor vehicle on any street or highway within Wyoming by any person upon whom service of process cannot be made within Wyoming either personally or by service upon a duly appointed resident agent is deemed an appointment of the secretary of state of Wyoming as the operator’s lawful attorney upon whom may be served all legal processes in any proceeding against him ... due to damage or injury to person or property resulting from the operation of a motor vehicle on the streets or highways within this state. Such operation constitutes the operator’s agreement that any process served in any action against him or his personal representative has the same legal force and validity as if served upon him or his personal representative personally within this state. Service shall be made by serving a copy of the process upon the secretary of state or by filing such copy in his office[.] Within ten (10) days after the date of service, notice of such service and a copy of the process shall be served upon the defendant ... either personally or by certified mail addressed to the last known address of the defendant[.]

Wyo. Stat. § l-6-301(a) (1977).

[¶ 8.] In addition to the procedural requirements of this statute, Wyoming requires a showing of due diligence in serving the notice of service on the defendant. Colley v. Dyer, 821 P.2d 565, 568 (Wyo.1991) (interpreting the statute “to implicitly require the plaintiff to exercise due diligence in attempting to locate an absent defendant”). The due diligence showing is more than perfunctory:

The diligence to be pursued and shown ... is that which is reasonable under the circumstances and not all possible diligence which may be conceived. Nor is it that diligence which stops just short of the place where if it were continued might reasonably be expected to uncover an address ... of the person on whom service is sought.... Due diligence must be tailored to fit the circumstances of each case. It is that diligence which is appropriate to accomplish the end sought and which is reasonably calculated to do so.

Id. at 568 (quoting Carlson v. Bos, 740 P.2d 1269, 1277 n. 13 (Utah 1987)).

[¶ 9.] In Colley, the plaintiff attempted to serve the defendant in person at a former address. When personal service failed, the plaintiff hired an investigator who contacted the defendant’s sister. That query rendered no information. Plaintiff then utilized constructive service under the non-resident motorist statute. Notice was mailed to the previously used address, but the address did not include the defendant’s complete address. Based on those facts, the Wyoming Supreme Court reversed and remanded for an adequate showing of due diligence. Id. at 569.

[¶ 10.] Dairyland argues that it utilized due diligence because it mailed the documents to Jarman’s “last known address.” Under Colley, however, Wyoming counsel’s evidentiary showing of due diligence was inadequate. Additionally, Jar-man’s opposing affidavit raises disputed issues of material fact that should not have been resolved by motion to dismiss.

[¶ 11.] With respect to the evidentiary showing, there is no dispute that Dairy-land never sent the documents to the address listed on the accident report, and according to Jarman’s affidavit, the address on his driver’s license. Dairyland sent the documents to the 502 8th Street address in Edgemont. According to Jar-man’s affidavit, however, there was no street delivery of mail in Edgemont. Rather, all mail was received through the post office. Additionally, the documents were sent to Edgemont instead of Hot Springs.

[¶ 12.] Dairyland responds that it obtained this address through “investi-gat[ion].” Nothing in Wyoming counsel’s affidavit, however, indicated how he determined that 502 8th Street, Edgemont was Jarman’s last known address or what investigatory steps he took to determine that address. Thus, there are no underlying evidentiary facts from which the circuit court could determine that the documents were mailed to Jarman’s last known street address or that 502 8th Street, Edgemont was ever Jarman’s address.

[¶ 13.] This Court has previously addressed a similar situation. In Lekanidis v. Bendetti, 2000 SD 86, 613 N.W.2d 542, plaintiffs attorney believed that an accident report prepared by an officer misspelled the defendant’s city’s name. The report further contained no zip code for the city. Consequently, counsel looked up the proper spelling of the city and found the zip code to include on the mailing. The initial notice and the notice of the hearing on the motion for default judgment were both sent to the amended address and both were returned marked, “Attempted-Not Known.” This Court concluded that the plaintiff had failed to comply with the non-resident motorist statute by failing to make the necessary due diligence showing to utilize substitute service of process. Id. at ¶ 32, 613 N.W.2d at 549-50. This Court stated:

Clearly Lekanidis had knowledge that this address was not Bendetti’s correct address. It certainly did not take Lekanidis long to find the correct address once the default judgment was entered. With only minor effort and diligence, Lekanidis could have discovered the correct address of Bendetti. He could have utilized the “skip trace” or the name of Bendetti’s insurance company and policy number listed on the accident report to locate his current address long before seeking a default judgment. Based upon this lack of diligence, Lekanidis has failed to show that he strictly complied with the requirement under SDCL 15-7-7 by mailing all legal documents to defendant’s “last known address.”

Id. at ¶ 32, 613 N.W.2d at 548-49 (emphasis added). See also Ryken v. State, 305 N.W.2d 393, 395 (S.D.1981) (providing, “it must be shown that all reasonable means have been exhausted in an effort to locate interested parties.”) (emphasis added).

[¶ 14.]In this case, Wyoming counsel’s affidavit, although stating that he exercised due diligence, is conclusionary without any evidentiary detail. The affidavit describes none of the investigatory steps Wyoming counsel took to ascertain that Jarman’s last known address was the address he utilized.

[¶ 15.] Dairyland, however, argues because its letter was marked “Refused,” as opposed to “Undeliverable” or “Unclaimed,” the service was effective. In its brief, Dairyland contends, “[t]he Postal Service marked the box ‘Refused’ for a reason.” Dairyland suggests this means that Jarman must have intentionally refused the mail and therefore the service should be deemed effective. The circuit court agreed, concluding that Jarman could not evade service by refusing to accept the attempted service.

[¶ 16.] According to Jarman’s responsive affidavit, however, he was in Chicago when delivery of Dairyland’s certified mail would have been attempted at the Edge-mont street address. Moreover, Jarman’s affidavit specifically stated that he never received the documents. This created a material issue of disputed fact because Dairyland’s affidavit contains no evidence concerning post office procedure or protocol for marking a letter “Rejected.” There was also no evidence from a postal worker that the “Refused” box was checked in this case because Jarman actually refused to accept delivery of the letter.

[¶ 17.] In light of the foregoing disputes of fact, the circuit court erred in granting enforcement on the ground that Jarman refused delivery of the letter. Although the use of affidavits is often permissible in deciding motions, “[w]here the affidavits are so conflicting as to render cross-examination essential, then the desirability of expeditious procedure must give way to a more formal hearing.” Matter of Estate of Eberle, 505 N.W.2d 767, 771 (S.D.1993) (citations omitted). In such cases, “[a]ffidavits, although made under oath, are ordinarily not considered competent evidence.... [They] are unsatisfactory as forms of evidence; they are not subject to cross-examination, combine facts and conclusions and, unintentionally or sometimes even intentionally, omit important facts or give a distorted picture of them.” Id.

[¶ 18.]In this case, the circuit court erred in deciding this matter on affidavits. Wyoming counsel’s affidavit was conclusionary with respect to due diligence and the conflicting assertions in Jarman’s affidavit raise material disputes of fact about the due diligence exercised by Wyoming counsel. Because the circuit court incorrectly relied upon affidavits to determine due diligence, including whether Jarman had effectively refused service, we reverse and remand for a due diligence hearing. Because we have remanded, we do not reach the parties’ remaining arguments.

[¶ 19.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . We treat this pleading as a motion.

      . The Wyoming statute is similar to South Dakota's non-resident motorist statutes: SDCL 15-7-6 and SDCL 15-7-7. SDCL 15-7-6 provides in part:
      The use and operation by a resident of this state or the resident's agent, or by a nonresident or the nonresident’s agent of a motor vehicle within the State of South Dakota, shall be deemed an irrevocable appointment by the resident or the resident’s agent ... of the secretary of State of South Dakota to be his or her true and lawful attorney upon whom may be served all legal process in any action or proceeding against the resident or nonresident....
      SDCL 15-7-7 provides in part:
      Service of process as authorized by § 15-7-6 shall be made by serving a copy thereof upon the secretary of state, or by filing the copy in the office of the secretary of state, together with payment of a fee of ten dollars. The service shall be sufficient service upon the absent resident or the nonresident or the resident’s or nonresident’s personal representative if the notice of the service and a copy of the process are within ten days thereafter sent by mail by the plaintiff to the defendant at the defendant's last-known address and that the plaintiff's affidavit of compliance with the provisions of this section is attached to the summons.

      . We require a similar showing to establish due diligence in constructive service cases:
      before service by publication ... may be ordered, the party instituting the litigation must exhaust all reasonable means available in an effort to locate interested parties to the litigation!.] Ultimately, ”[t]he test of the sufficiency of the showing of due diligence is not whether all possible or conceivable means of discovery are used, but rather it must be shown that all reasonable means have been exhausted in an effort to locale interested parties.” Therefore:
      A diligent search is measured not by the quantity of the search but the quality of the search. In determining whether a search is diligent, we look at the attempts made to locate the missing person or entity to see if attempts are made through channels expected to render the missing identity. While a reasonable search does not require the use of all possible or conceivable means of discovery, it is an inquiry that a reasonable person would make, and it must extend to places where information is likely to be obtained and to persons who, in the ordinary course of events, would be likely to have information of the person or entity sought.

        In re D.F., 2007 SD 14, ¶ 9, 727 N.W.2d 481, 484 (emphasis added) (internal citations omitted).

      . After judgment was entered, counsel performed a "skip-trace” and determined the defendant’s location. ''Skiptracing” is a "[sjervice which assists creditors in locating delinquent debtors or persons who have fled to avoid prosecution.” Black’s Law Dictionary 1387 (6th ed. 1990).

      . Dairyland relies on Miserandino v. Resort Properties, Inc., 345 Md. 43, 59, 691 A.2d 208, 215-16 (Md 1997) for the proposition that a letter marked “refused” is an affirmative refusal by the defendant, and a letter that is not affirmatively refused is marked "unclaimed.” The Miserandino discussion of "refused” verses "unclaimed” is, however, dicta because the court’s holding was that service by first class mail was improper. The Miserandino Court also noted, ”[i]n the case before us, there is no indication that any earlier attempt of service had been made, or that the defendants were attempting to avoid or resist service.” Id. at 56, 691 A.2d at 214 (emphasis added).
      Dairyland also relies on Tate v. Hughes, 255 Ga.App. 511, 565 S.E.2d 853 (Ga.App.2002). In that case, the nonresident defendant did not claim the certified mail at her local post office even though postal authorities had notified her of the mail. Further, unlike Jarman, the defendant in Tate did not deny having received the notices from postal authorities that the certified mail had been available for pickup.


author: BARNETT, Circuit Judge.

text:
    2007 SD 111
    ALL STAR CONSTRUCTION COMPANY, INC., a South Dakota Corporation, Plaintiff and Appellant, v. Mark KOEHN and Alicia Garcia, Defendants and Appellees.
    Nos. 24405, 24413.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2007.
    Decided Oct. 31, 2007.

      Barton R. Banks of Banks, Johnson, Colbath, Sumner & Kappelman, P.L.L.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Michael C. Loos of Clayborne, Loos & Strommen, L.L.P., Rapid City, South Dakota, Attorneys for defendants and appel-lees.
   BARNETT, Circuit Judge.

[¶ 1.] All Star Construction Company, Inc., (All Star) appeals from a judgment ordering it to “specifically perform under the terms of the contract and complete the punch list items set forth in Exhibit 118 as revised from time to time on the record, as well as the reconstruction and repair of the showerf.]” The judgment also ordered Mark Koehn and Alicia Garcia (Homeowners) to “specifically perform under the terms of the contract and pay to [All Star] the sum of $56,516.81 as the reasonable value of the work completed and not yet paid.”

[¶ 2.] We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 3.] Homeowners are practicing attorneys in Rapid City, South Dakota. They decided to remodel their home and build an addition to it. They contacted All Star and, on November 1, 2002, signed a form contract provided by All Star. The contract contemplated that some items listed in the contract were allowances or estimates. While figures were listed in the contract for these items, the contract also stated that “estimates are provided for budgeting purposes only. More accurate pricing can be provided when design and construction details have been furnished.” Additionally, the contract stated that “[a]llowance figures are included as actual costs to the contractor. Final job expenses will be adjusted accordingly.” (emphasis supplied). Notably, the contract did not define actual costs.

[¶ 4.] In the contract All Star warranted that all work would be completed in a workmanlike manner according to standard practices. The contract provided that “any alteration or deviation from above specifications including extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate.” (emphasis supplied).

[¶ 5.] The base contract price was $122,500 plus excise taxes. Approximately $51,000 of this total was denominated as allowances, which could be revised when changes were ordered by Homeowners, or as costs increased over the stated allowances. All Star later claimed a fifteen percent markup for overhead as an actual cost, and later reduced the markup claim to eight percent. Neither figure appears in either the contract or the change orders. Furthermore, All Star admitted that neither markup had ever been discussed with Homeowners during construction.

[¶ 6.] Throughout the course of the project Homeowners requested changes in the plan and details. On four occasions All Star presented Homeowners with a written change order, which they signed. The change orders described generally what caused the extra bill, but did not specify whether an eight percent markup had been added in. The change orders simply listed labor and materials. A fifth change order was presented after the work was completed, and was not signed by Homeowners. At trial Homeowners conceded that the amount listed on the fifth change order was due and owing, with the exception of a possible unstated eight percent markup. To further complicate matters, other changes were requested or approved by Homeowners, and performed by All Star, yet neither side presented or demanded a written change order at the time.

[¶ 7.] All Star admitted at trial that it was required to secure a signed change order in every instance, and that it did not do so in all cases. However, All Star contended, and the trial court agreed, that in such instances Homeowners were present and living in the home and not only requested the changes, but acquiesced despite the lack of a written change order.

[¶ 8.] In mid-2003 Homeowners were significantly behind in payments owed under the contract due to problems securing adequate financing. About this time, Homeowners hosted a family reunion and asked that All Star leave the jobsite. Due to the arrearages, All Star did not return to the home after the reunion, nor were they asked by Homeowners to come back. Homeowners did obtain some additional financing and were able to pay $90,000; however, this left almost $60,000 still owing. For two years there was no final construction or payment. Homeowners submitted a “punch list,” a list of finishing work that was not completed. All Star admitted that some of the finishing work was in fact not completed, but argued that its nonperformance was excused by Homeowners’ nonpayment. Additionally, the parties agreed that an expensive waterfall shower leaked, though they could not agree on the cause. Eventually All Star sued for payment under the contract. Homeowners sought an offset for unfinished or non-workmanlike efforts.

[¶ 9.] The case was heard at a court trial. After all evidence had been submitted, the trial court ruled from the bench. The trial court asked Homeowners if they wanted to amend their answer to seek specific performance. Homeowners so moved. The motion was granted over All Star’s objection. The trial court ordered All Star to go back in the home, fix the leaking shower, and complete the work listed on the punch list. The trial court further ordered the Homeowners to “spe■cifically perform” their part of the contract, by paying All Star $56,581.86. All Star sought prejudgment interest under SDCL 21-1-13.1. However, the trial court denied this claim on the ground that it had not awarded damages, but had instead awarded specific performance of $56,581.86.

[¶ 10.] The trial court denied All Star’s claim for an eight percent markup on any changes which were approved by Homeowners but not evidenced by a written change order. The written change orders do not specify whether they contain an eight percent markup. It is unclear whether the court intended that Homeowners be responsible for such a charge on the written change orders. Homeowners contend that they stipulated to all charges in the five change orders, except for any unstated eight percent markup.

[¶ 11.] All Star raises four issues on appeal:

Whether the trial court erred in ordering All Star to specifically perform under the contract.
Whether the trial court erred in failing to award prejudgment interest to All Star.
Whether All Star is entitled to an eight percent markup on labor and materials charged under change order number five.
Whether All Star is entitled to eight percent overhead or markup on the allowance overruns under the contract.

[¶ 12.] Homeowners filed a notice of review and raise one issue:

Whether Homeowners waived the requirement that all changes be in writing.

STANDARD OF REVIEW

[¶ 13.] We review the trial court’s findings of fact under the clearly erroneous standard. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. “Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court’s conclusions of law.” Id. The equitable remedy of specific performance is addressed to the sound discretion of the court, to be granted or denied according to the facts and circumstances in each instance. Stugelmayer v. Ulmer, 260 N.W.2d 236, 238 (S.D.1977). We review the decision of the trial court regarding an equitable remedy under the abuse of discretion standard. Ziegler Furniture and Funeral Home, Inc., v. Cicmanec, 2006 SD 6, ¶ 14, 709 N.W.2d 350, 354.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 14.] Whether the trial court erred in ordering All Star to specifically perform under the contract.

[¶ 15.] All Star contends that the trial court erred by ordering it to specifically perform the work itemized on the punch list. We agree.

[¶ 16.] Specific performance was not pleaded or tried. Neither party requested specific performance in the pleadings. Specific performance was never litigated or mentioned by either party during the evidentiary phase of trial.

[¶ 17.] The first mention of specific performance in this case came not from a party, but from the trial court as it issued its bench ruling. The court stated, “I was hoping that the defendant would make a motion based upon the evidence in this case to amend its pleadings to allege specific performance. Does the defense?” Counsel for defense took the trial court’s suggestion:

If it will help the Court with its decision, we’d so move. My sense was if the Court is looking for an explanation on items that specifically Mr. Declerq testified to, that under the law, his testimony serves equally as establishing what the owner offset would be, but if it’s specific performance, one way or the other, we’re asking that the shower be done within the context of the suit.

[¶ 18.] The court then stated, “If you move for specific performance, then I know what my decision is going to be.” Counsel for the defense replied, “We’ve so moved, Your honor.” Counsel for All Star immediately objected, argued the illegality of such an order, and moved to' amend All Star’s pleadings:

From the plaintiffs perspective, with all due respect, I don’t believe that the Court can legally order specific performance unless it can also find a breach of contract. In our submissions to the Court, we acknowledge that there were some items remaining to be completed on this job. However, until such time as the contractor has received payment due, that performance is illegally [sic] excused. And to the extent that maybe submissions or my complaint don’t [sic] adequately set forth that, we would likewise move to amend to include that.

[¶ 19.] This brief exchange between counsel and the court does not meet the requirements of SDCL 15 — 6—15(b) which provides, in part, “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” In American Property Services, Inc. v. Barringer, 256 N.W.2d 887, 891 (S.D.1977), we outlined the test which must be met before a party may be awarded relief not requested in the pleadings:

The test for allowing an adjudication of an issue under FRCP 15(b) and SDCL 15-6-15(b) tried by implied consent is whether the opposing party will be prejudiced by the implied amendment, i.e., did he have a fair opportunity to litigate the issue, and could he have offered any additional evidence if the case had been tried on the different issue. Moore’s Federal Practice ¶ 15.13(2) at 993; Lo martira v. American Automobile Insurance Co., 371 F.2d 550 (C.A.2, 1967); Deitz v. Bowman, 403 F.Supp. 1111 (D.S.D., 1975). Where there has not been a fair opportunity for a party to be heard on the issue and/or additional evidence could have been offered, any implied amendment would be prejudicial and no trial by implied consent exists.

[¶ 20.] In this case, All Star was prejudiced by the trial court’s ruling that All Star.could not be awarded prejudgment interest because the court awarded specific performance of $56,581.86 rather than awarding that amount as damages. All Star did not have a fair opportunity to litigate whether specific performance was an appropriate remedy; the issue was initially. raised by the trial court when it delivered its ruling from the bench. Had All Star, known that specific performance was a possible remedy it may well have presented evidence regarding whether or not the remaining work was of the type that any contractor could perform, a question common to specific performance cases. Because the trial court raised this -issue at the end of trial, we can only speculate on how the evidence might have come in differently. There was' no evidence from either side at trial on the issue.

[¶ 21.] Although our previous cases suggest that leave to amend pleadings should be granted to conform the case to the evidence adduced at trial, this rule is not without limits. In Oesterling v. Oesterling, 354 N.W.2d 735 (S.D.1984), the trial court proposed an affirmative defense at the end of evidence, and relied on that defense in ruling for the defendant. Plaintiff was not given any legitimate opportunity to contest the defense. We reversed, holding that affirmative defenses must be pleaded as such, and finding .that the plaintiff in that case had no notice that she would be called upon to respond to the court’s suggested defense. The present case is similar.

[¶ 22.] Thus, the issue of specific performance was not tried by implied consent. SDCL 15 — 6—16(b); Barringer, supra. The trial court abused its discretion in ordering specific performance.

ISSUE TWO

[¶ 23.] Whether the trial court erred in failing to award All Star prejudgment interest.

[¶24.] Prejudgment interest on contract damages is governed by SDCL 21-1-13.1:

Any person who is entitled to recover damages, whether in the principal action or by counterclaim, cross claim, or third-party claim, is entitled to recover interest thereon from the day that the loss or damage occurred, except during such time as the debtor is prevented by law, or by act of the creditor, from paying the debt.

This Court has recently held that-an award of interest under this statute is mandatory. Bunkers v. Jacobson, 2002 SD 135, ¶ 44, 653 N.W.2d 732, 744; City of Aberdeen v. Rich, 2003 SD 27, ¶ 19, 658 N.W.2d 775, 781. Prejudgment interest is allowed from the date of the loss regardless of whether the damages were known with certainty. City of Aberdeen v. Rich, 2003 SD 27 at ¶ 19, 658 N.W.2d at 781.

[¶ 25.] In this case, the trial court concluded that damages were not easily ascertainable and ordered Homeowners to specifically perform their obligations under the contract and pay All Star $56,516.81. The trial court further ordered that “no prejudgment interest is awarded since no damages are assessed.” Simply couching an award of damages in terms of specific performance cannot operate to defeat SDCL 21-1-13.1 and this Court’s holdings in Bunkers and City of Aberdeen. If this were the case, every judgment awarding contract damages could be relabeled an order for specific performance, and prejudgment interest would never be mandatory.

[¶ 26.] The trial court erred in denying prejudgment interest.

ISSUE THREE

[¶ 27.] Whether All Star is entitled to an eight percent markup on change order five.

[¶ 28.] The parties dispute whether All Star is entitled to overhead on the extra labor and materials charged under change order five. All Star asserts that during trial Homeowners stipulated to the overhead markup in change order five by stipulating to change order five itself. The trial court struck the eight percent markup for overhead from change order five.

[¶29.] Change order five, dated October 30, 2003, was not executed by Homeowners, but was stipulated at trial to be included in amounts due under the contract, subject to offsets or credits due Homeowners. Homeowners assert that this stipulation was limited to the claims and charges set forth in writing, as opposed to All Star’s present claim for additional recovery for items not supported by the original contract and written change orders.

[¶ 30.] “Oral stipulations of the parties in the presence of the court are generally held to be binding, especially when acted upon or entered on the court record, and need not be signed by the parties or their attorneys.” Matter of Estate of Eberle, 505 N.W.2d 767, 770 (S.D.1993). “While no particular form of stipulation is required when made orally in open court except that it be noted in the minutes, its terms must be definite and certain in order to render the proper basis for a judicial decision.” Id.

[¶ 31.] In this case, the Homeowners did not stipulate to the eight percent markup in change order five. No such markup percentage appears in the change order itself. The record reflects that counsel for the Homeowners did stipulate to the change orders: “[w]e’ll stipulate that [the change order] is what it says it was, that they were presented to my clients; and that they’re due and owing under the contract, subject to offsets.” (emphasis added). However, at the time of this stipulation, neither attorney made any mention of whether an eight percent markup was included within change order five. Finally, appellees’ counsel stated that his parties’ stipulation was “subject to offsets.” In other words, it was subject to anything that might be owing to the Homeowners by way of the contract. This stipulation was not sufficiently definite to enable the court to give it an exact meaning. Therefore, it was proper for the trial court to not give the stipulation any weight with respect to the eight percent overhead markup on change order five.

ISSUE FOUR

[¶ 32.] Whether All Star is entitled to its overhead on the allowance overruns under the contract.

[¶ 33.] The trial court struck the eight percent overhead markup from all of the allowance overruns. All Star claims it is entitled to an eight percent markup for company overhead on the allowance overruns under the terms of the contract which provide that “allowance figures are included as actual costs to the contractor.” All Star asserts that the phrase “actual costs” encompasses overhead.

Contract interpretation is a question of law reviewable de novo. Because we can review the contract as easily as the trial court, there is no presumption in favor of the trial court’s determination. When the meaning of contractual language is plain and unambiguous, construction is not necessary. If a contract is found to be ambiguous the rules of construction apply. Whether the language of a contract is ambiguous is ... a question of law.

Ziegler Furniture and Funeral Home, 2006 SD 6 at ¶ 14, 709 N.W.2d at 354.

[¶ 34.] In determining ambiguity we have stated:

A contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.

Singpiel v. Morris, 1998 SD 86, ¶ 16, 582 N.W.2d 715, 719.

[¶ 35.] Applying these principles to the language of the contract in this case, ambiguity does exist. The relevant provision states “[allowance figures are included as actual costs to the contractor. Final job expenses will be adjusted accordingly.” (emphasis added). On its face, the contract does not define what is meant by the phrase “actual costs.” Thus, the phrase “actual costs” could be capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.

[¶ 36.] The inquiry is whether the parties intended to include an eight percent markup for overhead as “actual costs” under contract. All Star admits that the eight percent overhead markup was never discussed at the time of contract formation. In fact, the markup was not discussed at all between the parties until All Star submitted its final settlement summary, and that summary claimed a fifteen percent markup on the allowance overruns. Only at trial did All Star reduce its request for overhead markup to eight percent.

[¶ 37.] The plain and ordinary meaning of the phrase “actual costs” in a contract between a contractor and a homeowner does not necessarily include overhead. This Court has allowed a contractor to recover overhead expenses against a homeowner when the construction contract unambiguously stated that the contractor was entitled to a percentage mark-up for profit and overhead on all items. Bunkers, 653 N.W.2d at 738. However, in Bunkers the trial court denied the contractor’s claim for excise tax as an actual cost.

[¶ 38.] Finally, because the language in the All Star contract is ambiguous, the ambiguity must be resolved in favor of the non-drafting party. Zochert v. Nat’l Farmers Union Property & Cas. Co., 1998 SD 34, ¶ 5, 576 N.W.2d 531, 532. All Star drafted the contract in this case and thus the ambiguity will be resolved in favor of Homeowners. In this case, “actual costs” cannot be read to include overhead.

[¶ 39.] The trial court did not err in refusing to allow the charge of eight percent for overhead on all of the allowance overruns.

ISSUE FIVE

[¶ 40.] Whether Homeowners waived the requirement that all changes be in writing.

[¶ 41.] The contract in this case provided, “[a]ny alteration or deviation from above modifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate.” Homeowners dispute whether All Star can recover any amount for the extra work and materials supplied at Homeowners’ request, or for the allowance overrun costs incurred, where All Star did not execute a written change order for such changes. The trial court concluded that Homeowners could not avoid paying for the extra work and materials. The trial court relied on Reif v. Smith, 319 N.W.2d 815 (S.D.1982).

[¶ 42.] This Court held in Reif:

Generally, provisions [requiring written change orders] prevent contractors from recovering for alterations or extras not subject to a written order. Such provisions, however, are impliedly waived by the owner where he has knowledge of the change, fails to object to the change, and other circumstances exists which negate the provision; i.e. the builder expects additional payment, the alteration was an unforeseen necessity or obvious, subsequent oral agreement, or it was ordered or authorized by the owner.

319 N.W.2d at 817. Additionally, repeated or entire disregard for contract provisions acts as a waiver of the written change order provision. Id.

[¶ 43.] The contract in Reif included the following provision: “Section 15. Work shall be changed and contract price and completion shall be modified only as set out in written change order.” 319 N.W.2d at 817. Problems arose in Reif when the original building plans proved inadequate and required numerous changes during the construction. The owners repeatedly visited the construction site and were aware of problems created by the plans and the changes. Yet, none of the changes or additions were made pursuant to written change orders as specified in Section 15. When the contractor had nearly finished the interior work, he gave the owners a bill for the balance due on the contract plus the extra labor and material due to changes. The owners refused to pay the bill, ordered the contractor off the premises, and refused to let him complete the work. Because owners had knowledge of the changes, failed to object to the changes, and authored the contract including Section 15, they were held liable for the costs of the changes.

[¶ 44.] The facts of this case are remarkably parallel to those in Reif Here, Homeowners provided the plans for this construction project. When those plans proved defective, changes became necessary. While some changes were reflected in five separate change orders, Homeowners repeatedly requested extra work, upgraded various allowance items without requesting a bid proposal or a written change order in advance, and did not request a written change order after the fact. Just as the owners in Reif were found to have notice by frequently visiting the construction site, here Homeowners lived in the home while all the work was being done. Thus, the trial court correctly concluded that Homeowners waived the contract provision requiring written change orders when Homeowners requested or had knowledge of the changes, and failed to object to those changes or to the lack of a written change order.

[¶ 45.] The trial court did not err in refusing to allow the charge of eight percent for overhead on the work performed by All Star under change order five.

CONCLUSION

[¶ 46.] We affirm in part, reverse in part, and remand for the calculation of both parties’ damages in accordance with this opinion.

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

[¶ 48.] KONENKAMP, Justice, disqualified.

[¶ 49.] BARNETT, Circuit Judge, for SABERS, Justice, disqualified.


author: ZINTER, Justice. SABERS, Justice

text:
    2007 SD 113
    Byron WOODRUFF, Petitioner and Appellant, v. BOARD OF COMMISSIONERS FOR HAND COUNTY, South Dakota, Phil Testerman, Ron Campbell, Rich Strasburg, Larry Rowen, and Delmar Fawcett, Respondents and Appellees.
    No. 24503.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Oct. 31, 2007.
    James G. Abourezk of Abourezk Law Offices, P.C., Sioux Falls, South Dakota, Attorneys for petitioner and appellant.

      James H. Jones, Hand County State’s Attorney, Miller, South Dakota, Attorney for respondents and appellees.
   ZINTER, Justice.

[¶ 1.] Byron Woodruff sought a writ of mandamus to require Hand County to enforce a zoning ordinance and prohibit the construction of a “hog barn” located near his residence. The circuit court denied mandamus relief. We affirm.

[¶ 2.] Stan and Mike Kopfmann obtained a Hand County building permit to construct the hog barn for 960 animal units. Woodruff, who resided 1.8 miles away, requested the County to stop the construction. Woodruff alleged the hog barn violated a county ordinance that required a two-mile separation between an “animal waste facility” and an occupied residence. The County denied Woodruffs request. Woodruff then sought a writ of mandamus in circuit court claiming that the County was required to enforce the ordinance’s separation requirement. Following the circuit court’s denial of relief, Woodruff brought this appeal.

[¶ 3.] “[A] writ of mandamus is an extraordinary remedy that will issue only when the duty to act is elear[.]” Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271. “It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right.” Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242. To prevail, “the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.” Id. The standard of review for the grant or denial of a writ of mandamus is abuse of discretion. Schafer v. Deuel County Bd. of Comm’rs, 2006 SD 106, ¶ 4, 725 N.W.2d 241, 243. This case, however, is dependent upon the interpretation of county ordinances. “The interpretation of an ordinance presents a question of law which we review de novo.” Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶ 5, 567 N.W.2d 880, 883.

[¶ 4.] Two parts of the Hand County zoning ordinance are at issue. The first defines the types of facilities that are covered by the ordinance. The second imposes performance standards, including the separation requirements for those facilities.

[¶ 5.] The definition section provides in part:

Animal Feeding Operation. An animal feeding operation is a facility where more than 1000 animal units are confined at an operation[;] and
Feedlot Commercial. The feeding of cattle, swine ... or other livestock, in lots or pens or concentrations of such animals in feeding areas, and such feeding is not done as a subordinate activity to the production of erops[.]

HaNd CoüNty, S.D., Zoning Ordinance pp. 3, 5 (Aug.1988). The two-mile separation requirement is found in subsection (f) of section 515, which provides:

Commercial Feedlot and/or Animal Feeding Operations:
1. Performance Standards:
a. Animal [F]eeding Operations shall submit animal waste management system plan and specifications ... to the Department of Environment and Natural Resources.
b. Prior to construction, such facilities shall obtain a storm water permit ... from the [DENR].
c. Animal waste facilities shall be no less than six hundred sixty (660) feet from adjoining domestic ground[.]
d. Applicant must present a nutrient management plan[.]
e. Animal waste facilities shall be located no closer than two (2) miles from any incorporated municipality.
f. Animal waste facilities shall be located no closer than two (2) miles from any occupied residence^]
g. Animal waste shall be transported no more than seven (7) miles from the point of origination for land application.

Id. art. 5, § 515 (emphasis added).

[¶ 6.] The circuit court first concluded that the hog barn fell under the definition of a “feedlot commercial” (commercial feedlot) rather than “animal feeding operation.” As indicated in the definitions, in order to be an animal feeding operation, the facility must confine at least 1,000 animal units. Id. at p. 3. Because this hog barn would confíne only 960 animal units, the circuit court correctly concluded that the hog barn did not meet the definition of an “animal feeding operation.” Instead, it met the definition of a commercial feedlot because it was for the confined feeding of swine and, as the circuit court noted, there was no evidence offered that it would be incidental to a crop growing operation.

[¶ 7.] The circuit court then concluded that because the hog barn was a commercial feedlot rather than an animal feeding operation, the separation requirement in subsection (f) did not apply. On appeal, Woodruff argues that subsection (f) does apply. Although he acknowledges that only subsection (a) specifically mentions either feeding operations or commercial feedlots, he contends that remaining subsections, including subsection (f), must apply to commercial feedlots because the heading of section 515 mentions both “Commercial Feedlot and/or Animal Feeding Operations.” Woodruff, however, misreads the ordinance.

[¶ 8.] First, the heading of the ordinance is irrelevant in this dispute. The ordinance is part of a comprehensive plan for land development in the County. Article 15, section 1503 of this comprehensive plan, entitled “Purpose of Sub-Titles,” specifically provides that the subtitles “are inserted simply for convenience, to serve the purpose of any index and they shall be wholly disregarded by any person, officer, court or other tribunal in construing the terms and provision of this Ordinance.” Therefore, the title of section 515 does not determine the scope or application of subsection (f).

[¶ 9.] Moreover, the text of subsection (f) does not refer to either commercial feedlots or animal feeding operations. Rather than referring to either of these defined terms, subsection (f) applies to a third term, requiring the two-mile separation from “animal waste facilities.” See id. art. 5, § 515(f). “Animal waste facilities” are not, however, defined or otherwise described in the ordinance. Therefore, to determine whether the separation requirement in subsection (f) applies to this commercial feedlot, we must first examine section 515 in its entirety to determine the meaning of an animal waste facility, and then determine whether an animal waste facility was required for this commercial feedlot.

[¶ 10.] In performing that analysis, we note that under subdivision (a), only animal feeding operations are required to submit “animal waste management system plans ... to the DENR.” Subsections (b), (c), (e), and (f) then refer to “such facilities” or “animal waste facilities.” We conclude that the “animal waste management systems” mentioned in subsection (a) are “such facilities,” i.e., the “animal waste facilities” that the drafters were referring to in those remaining subsections of section 515, including subsection (f).

[¶ 11.] We reiterate, however, that “animal waste management systems” or “animal waste facilities” are only required for “animal feeding operations.” See section 515(a). Furthermore, unlike subsection (a), none of the remaining subsections require animal waste management systems or animal waste facilities for commercial feedlots. In fact, the ordinance apparently contemplates commercial feedlots without animal waste facilities because subsection (g) regulates the removal of animal waste. We conclude that this ordinance did not require the hog barn to have an animal waste facility; and therefore, the hog barn was not subject to subsection (f)’s separation requirement.

[¶ 12.] We recognize the potential anomalous result that could occur from the County’s separation requirement for animal feeding operations with animal waste facilities, with no separation requirement for commercial feedlots without animal waste facilities. Nevertheless, we are bound by the language of the ordinance, and Woodruff has failed to cite any provision of the ordinance that clearly requires animal waste facilities for commercial feedlots. Absent that showing, Woodruff has failed to show “a dear legal right to performance of the specific duty sought to be compelled!]]” Black Hills Cent. R.R. Co. v. City of Hill City, 2003 SD 152, ¶ 13, 674 N.W.2d 31, 34.

[¶ 13.] The circuit court’s decision denying mandamus relief is affirmed.

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

[¶ 15.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 16.] I agree with the majority opinion that we are bound by the language of the county’s ordinance, even if we recognize the “potential anomalous result” that could occur from the county’s separation requirement for animal feeding operations with animal waste facilities, but not for commercial feed lots. For the drafters of this ordinance to impose a two-mile separation from a residence to animal feeding operations with animal waste facilities makes sense when that operation exceeds 1,000 animal units.

[¶ 17.] For a commercial feedlot with 960 animal units to have no animal waste facilities and consequently, no residential separation requirement makes no sense. Therefore, I write specially to encourage the use of commonsense in drafting commercial feedlot ordinances in the future.