author: KONENKAMP, Justice.

text:
    2001 SD 32
    The Filing by GCC LICENSE CORPORATION for Designation as an Eligible Telecommunications Carrier.
    Nos. 21510, 21521, 21525.
    Supreme Court of South Dakota.
    Argued on Nov. 28, 2000.
    Decided March 14, 2001.
    Rehearing Denied April 30, 2001.

      Rolayne Ailts Wiest, Special Assistant Attorney General, Public Utilities Commission, Pierre, SD, Attorney for appellant PUC.
    Richard D. Coit, Executive Director, SDITC, Pierre, SD, Attorney for appellant SD Independent Telephone Coalition.
    Tamara A. Wilka and Thomas J. Welk of Boyce, Murphy, McDowell <& Greenfield, Sioux Falls, SD.
    Alex Duarte, U.S. West Communications, Inc., Denver, CO, Attorneys for appellant U.S. West.
    Paul S. Swedlund of Gunderson, Palmer, Goodsell & Nelson, Rapid City, SD, Attorneys for appellee GCC.
    Mark J. Ayotte and Philip R. Schenken-berg of Briggs and Morgan, St. Paul, MN, Attorneys for appellee GCC.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, we examine whether the South Dakota Public Utilities Commission erroneously denied a wireless telecommunications company’s application to become an eligible telecommunications carrier (ETC). To answer the question, we interpret 47 U.S.C. 214(e)(1), the federal statute governing the requirements for ETC status. The PUC read this statute to require that applicants must presently be providing or offering all enumerated services before ETC designation. On appeal, the circuit court reversed, ruling that federal law only requires applicants to show that they are capable of offering or providing the required services. The court remanded the case to the PUC solely for findings on whether ETC designation in South Dakota rural exchanges is in the public interest. We affirm the circuit court in all respects.

A.

[¶ 2.] The Telecommunications Act of 1996 accomplished the most comprehensive restructuring of telecommunications law since the Communications Act of 1934. Indeed, Congress directed that the 1996 Act, including its provisions on local competition, be inserted into the 1934 Act. Telecommunications Act of 1996 § 1(b), Pub.Law 104 — -104, 110 Stat. 56. In the main, the Act creates a framework to encourage swift deployment of new technologies, to open telecommunications markets to competition, and to reduce regulation, so that Americans can enjoy lower prices and higher quality services. Id. To attain these goals, Congress sought to end the previously monopolistic local telephone markets in part by prohibiting states from imposing legal obstacles to impede competition. AT & T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 726, 142 L.Ed.2d 835 (1999). “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications services.” 47 U.S.C. 253. Congress was so set on removing barriers to entry that it authorized the FCC to preempt any state infringement “to the extent necessary to correct such violation or inconsistency.” 47 U.S.C. 253(d). To be legally viable, any state regulation must be administered on a “competitively neutral basis.” 47 U.S.C. 253(b).

[¶ 3.] The 1996 Act empowers states to grant certain entities the status of “eligible telecommunications carrier.” 47 U.S.C. 214(e). One of the benefits of becoming an ETC is the requirement that other carriers make available “public switched network infrastructure, technology, information, and telecommunications facilities and functions” at reasonable prices. 47 U.S.C. 259(a); 47 U.S.C. 259(b). ETCs are eligible to receive federal universal service financial support, but must use such support “only for the provision, maintenance, and upgrading of facilities and services for which the support is intended.” 47 U.S.C. 254(e). An ETC is obliged, at the risk of financial sanctions, to serve designated customers at appropriate prices. 47 U.S.C. 214(d). State utility commissions are required to ensure that telephone service providers not exclude areas more costly to serve and those commissions must “determine which common carrier or carriers are best able to provide such service to the requesting unserved community or portion thereof....” 47 U.S.C. 214(e)(3).

B.

[¶4.] On August 25, 1998, GCC License Corporation, a mobile cellular service provider, and a “common carrier” under federal law, applied for ETC status in all South Dakota counties. Intervening to oppose GCC’s request were Dakota Telecommunications Group, Inc., South Dakota Independent Telephone Coalition, and U.S. West Communications, Inc (now Qwest). The hearing took place on December 17-18,1998.

[¶ 5.] GCC is licensed to provide cellular service throughout South Dakota and has existing signal coverage in 98% of the state. In its application, GCC asserted that it currently provides or is capable of providing all the federally required services within its current mobile cellular offering. It is undisputed that GCC meets the definition of a common carrier, but it does not presently advertise a universal service offering. The latter requirement was not the focus of the case before the PUC. Instead, the dispute centered on the provision of statutorily enumerated support services. GCC admitted that it did not presently provide a universal service offering or a package containing all of the federally required enumerated services. A GCC representative testified that its universal service offering would be “shaped by consumer preferences.” GCC assumed that customers would want services and features comparable to those offered by traditional local exchanges, so access could be provided through a “wireless local loop service.” This wireless local loop would be supported by GCC’s existing network infrastructure. At the time of its application, GCC was not providing wireless local loop service to any customer in South Dakota.

[¶ 6.] GCC asserted that it could implement a universal service offering immediately upon designation. The PUC, however, was unconvinced of GCC’s ability to provide the required services throughout the state. The commission noted that GCC had, at the time of the hearing, applied for ETC status in thirteen states. The PUC emphasized, “GCC admitted that it could not provide service to every location in South Dakota.”

[¶ 7.] After the hearing, the commissioners unanimously voted to deny GCC’s application. In its findings of fact and conclusions of law, the PUC ruled that “an ETC must be actually offering or providing the services supported by the federal universal support mechanisms throughout the service area before being designated an ETC.” It also concluded: “Even if the Commission could grant a company ETC status based on intentions to serve, the Commission finds that GCC has failed to show that its proposed fixed wireless system could be offered to customers throughout South Dakota immediately upon being granted ETC status.” GCC appealed to the circuit court under SDCL 1-26-30.2. After reviewing briefs and hearing oral argument, the court entered its own findings of fact and conclusions of law reversing the PUC and remanding the matter solely for a public interest determination for rural service areas. The PUC, SDITC, and Qwest appeal.

C.

[¶ 8.] In reviewing an agency ruling, we apply the same standard as the circuit court, with no assumption that the court’s ultimate decision was correct. Cheyenne River Sioux Tribe Tel. Auth. v. Public Utilities Comm’n, 1999 SD 60, ¶ 12, 595 N.W.2d 604, 608 (citing Appeal of Templeton, 403 N.W.2d 398, 399 (S.D. 1987)). Questions of fact are reviewed with deference under the clearly erroneous standard. Cheyenne River Sioux Tribe, 1999 SD 60, ¶ 12, 595 N.W.2d at 608 (citations omitted). In this instance, our review of the circuit court’s fact findings reverts to the PUC’s findings because the court’s fact findings were based solely on the record before the PUC. Cf. State Div. of Human Rights v. Miller, 349 N.W.2d 42, 46 n. 2 (S.D.1984). Questions of law, as well as mixed questions of law and fact, are fully reviewable. Zoss v. United Bldg. Center, Inc., 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843 (citing Permann v. South Dakota Department of Labor, 411 N.W.2d 113 (S.D.1987))(further citations omitted).

D.

Requirements for ETC Designation

[¶ 9.] To attain ETC designation, an applicant must: (a) be a common carrier; (b) offer certain supported services prescribed by the FCC in 47 C.F.R. § 54.101(a)(l)-(9); (c) advertise the availability of the services and charges using media of general distribution; and (d) request an appropriate designated service area. See 47 U.S.C. 214(e)(l)(A)(B)(empha-sis added); 47 U.S.C. 214(e)(2). Additionally, before designating an additional ETC in an area served by a rural telephone company, a state utility commission must find that the designation is in the “public interest.” 47 U.S.C. 214(e)(2).

[¶ 10.] In interpreting these requirements, the PUC ruled that the word “offer” in 47 U.S.C. 214(e)(1)(A) requires a carrier to actually be “offering or providing” the enumerated services throughout the service area “before being designated an ETC.” Thus, the commission concluded that it “cannot grant a company ETC status based on intentions to serve.” The PUC also relied on the use of the present tense of the verb “meets” in 47 U.S.C. 214(e)(2): “the State commission may, in the case of an area served by a rural telephone company ... designate more than one common carrier as an [ETC] ... so long as each additional requesting carrier meets the requirements of paragraph (1).”

[¶ 11.] We interpret statutory provisions to learn the intent of the law. De Smet Ins. Co. of South Dakota v. Gibson, 1996 SD 102, ¶ 7, 552 N.W.2d 98, 100 (citations omitted). Where possible, congressional intent should be gleaned from the plain text of the statute. Id. When statutory language is clear and unambiguous we can simply declare the meaning as expressed. Id. Here, we face two possible readings of § 214(e)(1). On the one hand, the statute might be construed to require that an applicant presently provide or offer the required services before ETC designation. On the other hand, the requirement that a common carrier offer enumerated services and advertise those services could be understood as a post-designation condition. The statute says the offering and advertising must occur “throughout the service area for which the designation is received....” 47 U.S.C. 214(e)(l)(empha-sis added). The word “received” is in the past tense.

[¶ 12.] We must concede that both interpretations seem reasonable, which captures the very essence of ambiguity. Regrettably, the 1996 Act is rife with ambiguities, as the United States Supreme Court noted:

It would be gross understatement to say that the Telecommunications Act of 1996 is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction. That is most unfortunate for a piece of legislation that profoundly affects a crucial segment of the economy worth tens of billions of dollars.

AT&T Corp., 525 U.S. at 397,119 S.Ct. at 738, 142 L.Ed.2d 835. Our examination cannot verify from the text of § 214(e)(1) itself what Congress precisely intended. We must therefore go beyond plain language analysis to decide which interpretation more closely comports with congressional intent. In cases where a literal approach leaves us without a definitive interpretation, “the cardinal purpose of statutory construction — ascertaining legislative intent — ought not be limited to simply reading a statute’s bare language; we must also reflect upon the purpose of the enactment, the matter sought to be corrected, and the goal to be attained.” De Smet Ins. Co., 1996 SD 102, ¶7, 552 N.W.2d at 100 (citations omitted).

[¶ 13.] ETCs are creations of the 1996 Act. See Pub.Law 104-104, Title I, § 102(a), 110 Stat. 80. Before this legislation, regulation of the telephone industry was “premised on the belief that only monopolies could provide reliable, universal service.” Cablevision of Boston, Inc. v. Public Improvement Comm’n of the City of Boston, 184 F.3d 88, 97 (1st Cir.1999). The 1996 Act represents a substantial change in telecommunications regulation. Id. It seeks to encourage multiple providers and competition. Id. (citing Kearny & Merrill, The Great Transformation of Regulated Industries Law, 98 Column. 1323, 1325-26 (1998)).

[¶ 14.] Congressional desire to bring competition to this long-time monopolistic industry is explicit in the preamble to the 1996 Act: “An act to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” See Pub.Law 104-104, 110 Stat. 56 (1996). See also, Texas Office of Pub. Utility Counsel v. Federal Communications Comm’n, 183 F.3d 393, 406 (5th Cir. 1999)(cert. granted, —- U.S. -, 120 S.Ct. 2214, 147 L.Ed.2d 247 (2000)). We find it difficult to reconcile the PUC’s interpretation of § 214(e)(1) with the thrust of the 1996 Act, promoting competition.

[¶ 15.] If common carriers must provide or offer all the universal services throughout the area at the time they seek designation, an onerous, perhaps overwhelming, burden would confront them. They would have to offer the enumerated services in high cost areas in competition with incumbent carriers without any assurance of support. Only after substantial investment and risk could a new carrier even seek designation, perhaps to later discover that it is not eligible. Such an interpretation gravely disadvantages applicant carriers, while fostering the very monopolies Congress sought to abolish.

[¶ 16.] Having in mind the congressional purpose behind the 1996 Act, the language of § 214(e)(1) tends to support a less restrictive reading. After all, obtaining ETC status is only the first step in receiving support. Within § 214(e) Congress specifically provided that once ETC status is obtained, federal subsidies are not automatic. Instead, a carrier so designated “shall be eligible to receive universal service support....” See 47 U.S.C. 214(e)(l)(emphasis added). If a carrier ■wishes to receive subsidies it must follow through with its intentions. Indeed, the Federal Communications Commission declared that “a carrier’s continuing status as an eligible carrier is contingent upon continued compliance with the requirements of § 214(e) and ... attracting and/or maintaining a customer base....” In the Matter of Federal-State Joint Board on Universal Service, Report and Order, 12 FCCR 8776, ¶ 138, 1997 WL 236383 (May 8,1997)(aff'd. in part and reversed in part, Texas Office of Pub. Utility Counsel v. FCC, 183 F.3d 393 (5th Cir.1999)).

[¶ 17.] An ETC designation is not a guarantee of universal service support. A carrier must still provide the enumerated services required by federal law. In accord with 47 U.S.C. 214(e), an ETC is permitted to relinquish its designation in any area with more than one eligible carrier. 47 U.S.C. 214(e)(4). In doing so, the law requires the relinquishing ETC to provide the state commission with notice of its intent. Id. Notice is required so that the state commission can inform other carriers and “permit the purchase or construction of adequate facilities by any remaining [ETC].” Id. The express purpose of such a notice requirement is to ensure that all customers of the relinquishing ETC will continue to have universal services. Id. Thus, this section presupposes that ETCs may have to upgrade services even after designation.

[¶ 18.] Finally, the Federal Communications Commission has ruled on this very issue. After the South Dakota PUC denied ETC status to GCC, Western Wireless, GCC’s parent company, sought a preemptive order from the FCC. In a declaratory ruling released on August 10, 2000, the FCC rejected the PUC’s interpretation of § 214(e)(1), but declined to order preemption pending the outcome of this appeal. The FCC held that “interpreting § 214(e)(1) to require the provision of service throughout the service area pri- or to ETC designation prohibits or has the effect of prohibiting the ability of competitive carriers to provide telecommunications service, in violation of § 253(a) of the Act.” After designation as an ETC, the FCC ruled, a carrier must be given a reasonable opportunity to provide the services customers request.

[¶ 19.] It should be acknowledged, however, that the South Dakota PUC did not rule that applicant carriers must offer and provide required services before designation, only offer or provide them. The FCC did not recognize that distinction. Nevertheless, even if we retained some doubt on the proper construction of § 214(e)(1), we give a federal agency’s interpretation of the statutes it administers highly deferential review. Chevron USA v. Natural Resources De fense Council Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Consequently, we affirm the circuit court’s interpretation of § 214(e) that a carrier need not be presently offering required services before qualifying as an eligible carrier. Likewise, inability to provide service immediately upon designation is not a basis for denying ETC status. New carriers, like incumbent carriers, are required to serve new customers on reasonable request. The PUC’s contrary interpretation violates congressional intent to promote competition and unlock access to telecommunications markets.

E.

Providing Universal Service “Throughout the Service Area”

[¶ 20.] The PUC denied GCC’s application because § 214(e)(1) requires an ETC to offer supported services throughout the service area and advertise the availability of those services. The PUC concluded that “GCC is not currently offering fixed wireless service nor is it advertising the availability of a fixed wireless service throughout South Dakota.” Although the PUC acknowledged GCC’s argument that current offering of services is not required, it found that such interpretation was contrary to the plain meaning of the statute. It is apparent from this language that the PUC determination that GCC did not meet the “throughout the service area requirement” was colored by its erroneous interpretation of § 214(e)(1). Consequently, after reviewing the record, we affirm the circuit court’s ruling that GCC can within a reasonable time meet each of the' requirements of § 214(e). Along with the court we too conclude that the record sufficiently demonstrates GCC’s intent and ability to provide the required enumerated services throughout South Dakota upon designation.

F.

Additional Requirements for ETC Designation

[¶ 21.] SDITC argues that implicit in the circuit court’s decision is a ruling that the PUC cannot impose additional requirements on a carrier seeking ETC status. The PUC’s decision to deny GCC designation as an ETC did not hinge on any additional state requirement. The rationale for the PUC’s denial is well summarized in one of its conclusions of law.

The Commission finds that pursuant to 47 U.S.C. § 214(e), an ETC must be actually offering or providing the services supported by the federal universal service support mechanisms throughout the service area before being designated an ETC. GCC intends to provide a universal service offering initially through a fixed wireless system. However, it does not currently offer fixed wireless service to South Dakota customers. The Commission cannot grant a company ETC status based on intentions to serve.

[¶ 22.] The circuit court made no specific finding that the PUC was without authority to compel further requirements. The challenged finding recited that

[p]ursuant to 47 U.S.C. § 214(e)(2) the Commission is required to designate a common carrier that meets the requirements of Section 214(e)(1) as an ETC.... However, before designating an additional ETC for an area served by a rural telephone company the Commission must find that the designation is in the public interest.

This statement alone does not constitute a finding that the PUC is with or without such authority. Apparently, the circuit court took the PUC at its word that there were no additional requirements. This Court will not pass on an issue not decided by the circuit court. Matter of Guardianship of Petrik, 1996 SD 24, ¶ 11, 544 N.W.2d 388, 390 (citations omitted).

G.

No “Public Interest” Finding for Non-Rural Exchanges

[¶ 23.] Qwest Corporation alone contends that under the 1996 Act a state utilities commission must make a separate public interest determination before granting ETC status in all telephone exchanges, rural and non-rural. The relevant portion of the statute provides:

Upon request and consistent with the public interest, convenience, and necessity, the State commission may, in the case of an area served by a rural telephone company, and shall, in the case of all other areas, designate more than one common carrier as an eligible telecommunications carrier for a service area designated by the State commission, so long as each additional requesting carrier meets the requirements of paragraph (1). Before designating an additional eligible telecommunications carrier for an area served by a rural telephone company, the State commission shall find that the designation is in the public interest.

47 U.S.C. 214(e)(2)(emphasis added). Qwest’s position contradicts the plain reading of this section.

[¶24.] The portion of the statute addressing non-rural exchanges provides that “consistent with the public interest, convenience, and necessity, the State commission ... shall, in the case of all other areas, designate more than one common carrier ... so long as each additional requesting carrier meets the requirements of paragraph (1).” 47 U.S.C. 214(e)(2)(em-phasis added). The PUC must designate an additional ETC in a non-rural exchange so long as the requesting carrier “meets the requirements of paragraph (1).” The phrase “consistent with the public interest, convenience, and necessity” when read with the mandatory “shall” expresses the congressional premise that in non-rural exchanges the existeneé of more than one ETC is in the public interest.

[¶ 25.] The last sentence of this section further weakens Qwest’s position. In that sentence, Congress expressly provides that before designating an additional ETC in a rural exchange, the commission “shall” determine if the designation is in the public interest. See 47 U.S.C. 214(e)(2). If Congress had intended to require such a finding in all telephone exchanges, whether rural or non-rural, it could have easily so declared. Qwest’s interpretation cannot be sustained.

H.

“Public interest” Finding for Rural Exchanges

[¶ 26.] For ETC designation in rural exchanges, a state utilities commission is expressly required to find whether the designation of an additional telecommunications carrier is in the public interest. “Before designating an additional [ETC] for an area served by a rural telephone company, the State Commission shall find that the designation is in the public interest.” 47 U.S.C. 214(e)(2); see also SDCL 49-31-78. Because it found that GCC was not currently offering or providing the necessary services to support the granting of ETC designation, the PUC ruled that “it need not to reach the issue of whether granting ETC status to GCC in areas served by rural customers is in the public interest.” The circuit court remanded this matter for a determination based on record evidence. Although we do not wish to hamstring the PUC by unreasonably limiting its oversight of the telecommunications industry, we think it vital that there be as little delay as possible in allowing GCC to begin operations in South Dakota. This matter has been delayed for years. Evidence was submitted in 1998 on the public interest question and the issue would have been reached then if the inquiry had not been aborted due primarily to an erroneous application of federal law. Therefore, if based on record evidence the PUC finds that the public interest test has been satisfied in the rural areas where GCC is seeking ETC status, then the PUC must award such designation in those areas.

[¶ 27.] We affirm the circuit court in all respects.

[¶ 28.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      .47 U.S.C. § 214(e) states in relevant part:
      Provision of universal service
      (1) Eligible telecommunications carriers A common carrier designated as an eligible telecommunications carrier under paragraph (2), (3), or (6) shall be eligible to receive universal service support in accordance with section 254 of this title and shall, throughout the service area for which the designation is received—
      (A) offer the services that are supported by Federal universal service support mechanisms under section 254(c) of this title, either using its own facilities or a combination of its own facilities and resale of another carrier's services (including the services offered by another eligible telecommunications carrier); and
      (B) advertise the availability of such services and the charges therefor using media of general distribution.
      (2) Designation of eligible telecommunications carriers
      A State commission shall upon its own motion or upon request designate a common carrier that meets the requirements of paragraph (1) as an eligible telecommunications carrier for a service area designated by the State commission. Upon request and consistent with the public interest, convenience, and necessity, the State commission may, in the case of an area served by a rural telephone company, and shall, in the case of all other areas, designate more than one common carrier as an eligible telecommunications carrier for a service area designated by the State commission, so long as each additional requesting carrier meets the requirements of paragraph (1). Before designating an additional eligible telecommunications carrier for an area served by a rural telephone company, the State commission shall find that the designation is in the public interest.

      . GCC conducts its cellular business under the tradename Cellular One, a wholly owned subsidiary of Western Wireless Corporation.

      . SDITC is an incorporated organization that represents the interests of independent and municipal telephone companies operating in South Dakota. Each member of this organization is a rural telephone company and an incumbent local exchange carrier.

      . US West, now Qwest, is a non-rural telephone company and is the only non-rural carrier designated as an ETC in all non-rural exchanges where GCC seeks designation.

      . A fixed wireless local loop service would provide customers with attributes more commonly associated with landline technology. This would allow customers to have a dial tone on their phones, not available with a traditional cellular unit. Furthermore, this fixed offering would permit customers to connect answering machines, fax machines, and other peripheral devices to their phone lines.

      . In their respective briefs to this Court, both the PUC and the South Dakota Independent Telephone Coalition emphasize that the credibility pf this assertion is questionable in light of other statements by GCC. Both contend that GCC indicated a need to build additional towers and cell sites "to provide good quality.” More accurately, the complete record reflects GCC’s willingness to construct additional facilities and provide additional equipment "where necessary” to "optimize voice quality.”

      .The three appellants in this case collectively present a total of eight issues:
      1. Whether an applicant for ETC designation must be providing or offering universal support services prior to obtaining designation.
      2. Whether the circuit court applied an improper standard of review.
      3. Whether the PUC was clearly erroneous when it found that GCC did not currently offer required universal support services through its existing cellular service at the time of its application.
      4. Did the PUC err when it determined that GCC could not provide universal services "throughout the service area?”
      5. Did the circuit court err in finding that GCC demonstrated an intent and ability to provide the required universal services throughout the State and provide such services upon designation?
      6. Did the circuit court erroneously find that the PUC has no authority to impose additional requirements for ETC designation beyond those provided for in 47 U.S.C. 214(e)(l)-(2)?
      7. Did the circuit court err when it ordered the PUC to determine "based on the record" whether designation of GCC as an ETC was in the public interest?
      8. Whether the public interest requirement under 47 U.S.C. 214(e) applies only to rural exchanges.
      The central issue involves the interpretation of 47 U.S.C. 214(e). Because we affirm the circuit court’s interpretation, we need not reach Issues 3 and 4.

      . These enumerated services include: voice grade access, some amount of local usage free of charge, dual tone multi-frequency signaling or its functional equivalent, single-party service or its functional equivalent, access to emergency service (911 service), access to operator service, access to interexchange service, access to directory assistance, and toll limitation to qualifying low income consumers. See 47 C.F.R. 54.101(a)(l)-(9). Also, an ETC is obligated to make available Lifeline and Link Up services to qualifying low income customers. 47 C.F.R. 54.405; 47 C.F.R. 54.411.

      . See In the Matter of Federal-State Joint Board on Universal Service, CC Docket No 96-45, Declaratory Ruling, 15 F.C.C.R. 15168 (2000). GCC contends that this decision is binding as a result of the United States Supreme Court decision in AT & T Corp. v. Iowa Utilities Board, 525 U.S. 366, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999). We do not interpret that case to so hold. Congress clearly gave the states the authority to designate ETCs. See 47 U.S.C. 214(e). Similarly 47 U.S.C. 152(b) indicates “nothing in this chapter shall be construed to apply or give to the Commission [FCC] jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication....” 47 U.S.C. 152(b).
      The South Dakota PUC is unique in its interpretation of 47 U.S.C. 214(e)(1). To our knowledge, no other state utilities commission has interpreted it in a similar manner. See e.g. Western Wireless Corp. Designated Eligible Carrier Application, Findings of Fact and Conclusions of Law, PU-1564-98-428, ¶ 36, ¶ 8 (ND PUC 1999)(interpret-ing the statute in accord with the FCC’s declaratory ruling).

      . The PUC asserted in its fourth issue that “[t]he circuit court erred in finding that the commission’s decision required an applicant for ETC designation to show it is providing a universal service offering to every location in the requested designated service area." We decline to address the propriety of the circuit court’s construction in light of our scope of review. See Cheyenne River Sioux Tribe, 1999 SD 60, ¶ 12, 595 N.W.2d at 608 (citations omitted). We review agency findings, as did the circuit court with no presumption that the circuit court was correct. Id.

      . Although we decline to reach the merits of SDITC's claim, it is worth mentioning that even if a state commission does retain authority to impose additional requirements, any such requirements must be competitively neutral and consistent with the Act's aim of promoting competition. See 47 U.S.C. 253(b).


source: Caselaw Access Project

author: SABERS, Justice. AMUNDSON, Justice

license: Public Domain

text:
    2001 SD 36
    DUNES HOSPITALITY, L.L.C., a South Dakota Limited Liability Company, Plaintiff and Appellee, v. COUNTRY KITCHEN INTERNATIONAL, INC., a Minnesota Corporation, Defendant and Appellant. Country Kitchen International, Inc., a Minnesota Corporation, Third-Party Plaintiff and Appellant, v. Venerts Investments, Inc., a South Dakota Corporation, James Berven, and William Folkerts, Third-Party Defendant and Appellee.
    Nos. 21395, 21400.
    Supreme Court of South Dakota.
    Argued Jan. 10, 2001.
    Decided March 21, 2001.

      Thomas K. Wilka of Hagen, Wilka & Archer, P.C., Sioux Falls, SD, Attorneys for plaintiff and appellee Dunes Hospitality, L.L.C.
    Lawrence R. Commers, Tim A. Staum of Maekall, Crounse & Moore, Minneapolis, MN, and Brian J. Donahoe of Cutler, Do-nahoe & Mickelson, Sioux Falls, SD, Attorneys for defendant and appellant Country Kitchen International, Inc.
   SABERS, Justice.

[¶ 1.] Dunes Hospitality, LLC (Dunes) brought an action against Country Kitchen Int’l, Inc. (CKI) to set aside a settlement agreement on claims of fraud or economic duress. The jury rejected the fraud claim but found economic duress. We hold that the law of economic duress applies but that these facts do not constitute economic duress.

FACTS

[¶ 2.] Dunes was granted the right to manage a Country Kitchen restaurant in North Sioux City, South Dakota for a period of fifteen years. Dunes entered into an agreement for management of the restaurant with CKI on December 14, 1994. The members of Dunes included at least three lawyers, a law professor, a real estate broker and a doctor. In early 1996, the members became frustrated when the restaurant was still not meeting its revenue expectations. The members of Dunes asserted that the restaurant was mismanaged. They repeatedly sent complaints to CKI concerning poor service and the quality of food, apparently with no improvement. As problems persisted, the members of Dunes began to consider their options under the management agreement.

[¶ 3.] These options included firing CKI and replacing them with a new manager, running the restaurant themselves, or filing suit. Members of Dunes visited with CKI to discuss settlement of their claims. CKI attempted to force members of all four South Dakota locations to negotiate in unison. However, Dunes and the other restaurants refused, and eventually separate settlements were negotiated. On July 2, 1996, CKI sent Dunes a draft settlement agreement. Charles Sederstrom, a member of Dunes and an attorney in Omaha, Nebraska, was appointed to draft a counter proposal to CKI even though he and others opposed the settlement agreement. The settlement agreement was eventually executed by Jim Berven, a realtor and broker and general partner of Dunes, on August 22, 1996. The settlement agreement became final on August 30,1996.

[¶ 4.] Pursuant to the settlement agreement, CKI agreed to designate a representative at its expense to perform management functions, waive all manager fees, modify the cash call provisions, and allow early termination of the agreement without cause. The agreement specifically provided that the law of Minnesota was to control its terms, that the agreement constituted the entire understanding between the parties, and unconditionally released CKI from any claims that relate to the management agreement.

[¶ 5.] On November 4,1996, Dunes terminated the management agreement and filed this lawsuit. Dunes asserted that the settlement agreement was procured by fraud and economic duress and was therefore void. Dunes also alleged that CKI understated accounts payable to vendors by almost one-hundred percent, forced settlement by the all or nothing approach to the South Dakota restaurants, threatened complete withdrawal from the South Dakota locations, demanded additional cash calls and would have left the Dunes without service for the Country Inn and Suites Hotel to which the restaurant was affixed.

[¶ 6.] The jury found that the settlement agreement was not procured by fraud but by economic duress and was unenforceable. CKI appeals contending:

1. The trial court should have applied Minnesota law on economic duress.
2. The trial court incorrectly instructed the jury on economic duress.
3. Dunes failed to meet its burden of proof on economic duress, thereby requiring a directed verdict or judgment notwithstanding the verdict.

By notice of review Dunes raises one issue: Whether the trial court abused its discretion in curtailing Dunes rebuttal testimony.

STANDARD OF REVIEW

[¶ 7.] “Jury instructions are considered as a whole and will not be deemed erroneous if they sufficiently and correctly state the applicable law.” Isaac v. State Farm Mut. Ins. Co., 522 N.W.2d 752, 759 (S.D.1994). In addition, the trial court’s ruling on a motion for a directed verdict or for judgment notwithstanding the verdict “are presumed correct and this Court will not seek reasons to reverse.” U.S. v. State, 1999 SD 94, ¶ 7, 598 N.W.2d 208, 211. “If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate.” Id. Questions of law are reviewed de novo. Id. ¶ 8, 598 N.W.2d 208.

[¶ 8.] 1. WHETHER THE TRIAL COURT SHOULD HAVE APPLIED MINNESOTA LAW ON ECONOMIC DURESS.

[¶ 9.] The settlement agreement provides that it “shall be construed in accordance with the laws of the State of Minnesota.” In South Dakota, a stipulation that provides the governing law is permitted. See State ex rel Meierhenry v. Spiegel, Inc., 277 N.W.2d 298, 299 (S.D. 1979). CKI asserts that Minnesota law therefore controls. Minnesota courts refuse to recognize the defense of “economic duress” or “financial distress” in disputes involving contract law. See Johnson v. Hubbard Broadcasting Inc., 940 F.Supp. 1447, 1456 (D.Minn.1996); Prod. Credit Ass’n v. Farm Credit Bank, 781 F.Supp. 595, 604 n. 7 (D.Minn.1991); St. Louis Park Investment v. R.L. Johnson Inv., 411 N.W.2d 288, 291 (Minn.Ct.App.1987); Bond v. Charlson, 874 N.W.2d 423, 428 (Minn.1985).

[¶ 10.] We have generally recognized that parties may agree to be bound by the law of a particular state. State ex rel Meierhenry, 277 N.W.2d at 299. However, “such governing law agreements are subject to limitation and invalidation by the overriding public policy of the forum state.” Id. (citing 16 AmJur2d, Conflict of Laws, § 46). Our legislature has also specifically stated that any contract which would exempt anyone “from responsibility for his own fraud ... [is] against the public policy of this state.” SDCL 53-9-3. “Therefore, foreign laws will not be given effect if, by doing so, contract provisions would be enforced which would be contrary to the settled public policy of the domestic forum.” State ex rel Meierhenry, 277 N.W.2d at 300 (citations omitted).

[¶ 11.] The Restatement (Second) Conflict of Laws, § 187 recognizes that generally “[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied.” However, the comments to § 187 state:

A choice of law provision, like any other contractual provision, will not be given effect if the consent of one of the parties to its inclusion in the contract was obtained by improper means, such as misrepresentation, duress, or undue influence, or by mistake. Whether such consent was in fact obtained by improper means or by mistake will be determined by the forum in accordance with its own legal principles.

Restatement (Second) Conflict of Laws, § 187 cmt. b. “South Dakota applies the provisions of the Restatement (Second) of Conflicts of Laws in order to resolve questions about which state’s laws govern in particular factual situations.” Stockmen’s Livestock Exch. v. Thompson, 520 N.W.2d 255, 257 (S.D.1994) (citing Chambers v. Dakotah Charter Inc., 488 N.W.2d 63 (S.D.1992)).

[¶ 12.] Dunes alleged that it entered into the settlement agreement containing the choice of law provision because of fraud and economic duress. We are satisfied from the record that bona fide genuine issues of material fact existed concerning fraud and economic duress. That the jury eventually found against the position on fraud does not diminish the fact that these were more than bare assertions. Additionally, the jury found sufficient facts for economic duress. Although we reverse the economic duress issue as a matter of law, the facts in this record are sufficient for the purpose of considering the law to be applied. As such, the laws of South Dakota apply as the forum state. The most significant contacts were in South Dakota. See Chambers, 488 N.W.2d at 67 (adopting the most significant relationship approach). Dunes signed the agreement in South Dakota, the negotiators for CKI visited South Dakota to make their demands, the restaurant is in South Dakota, and most of the investors are from South Dakota.

[¶ 13.] Therefore, the use of South Dakota law to determine economic duress was not error.

[¶ 14.] 2. WHETHER THE JURY INSTRUCTIONS ON ECONOMIC DURESS WERE IN ERROR.

[¶ 15.] CKI claims that the jury instructions on economic duress were in error because they were an inadequate statement of the law, were contradictory, failed to set forth reasonable alternatives, permitted lesser standards, and failed to identify the correct factors in determining the applicability of such a defense. We must determine whether South Dakota law recognizes the defense of economic duress, whether the jury instructions comport with that law and whether economic duress was established.

[¶ 16.] This Court has consistently stated that “it favors the compromise and settlement of disputed claims outside of court.” Parkhurst v. Burkel, 544 N.W.2d 210, 212 (S.D.1996) (citations omitted). Yet, “[settlements and releases are contractual agreements subject to rescission under the same grounds as any other contract.” Id. In determining the validity of a settlement agreement in Drier v. Great American Insurance Company, 409 N.W.2d 357 (S.D.1987), we addressed, as a matter of first impression, the defense of economic duress.

[¶ 17.] In Drier, we recognized that economic duress or business compulsion is a relatively recent outgrowth of the common law doctrine of duress. Drier, 409 N.W.2d at 360. “Originally, common law duress was concerned exclusively with either physical imprisonment or threats of serious bodily harm.” Id. (citing Dawson, Economic Duress An Essay in Perspective, 45 MichLRev 253, 254 (1947)). Yet, gradually the common law began to extend to encompass the field of economic pressure. Id. Drier acknowledged that “many authorities recognize that economic duress or business compulsion vitiates a contract” and explained generally that:

Business compulsion/economic duress will generally be available where one party to a contract, in economic straits, is called upon to comply with demands made by the other contracting party (who is at least partly to blame for the strained condition and who is often in a position of superior bargaining power) and the former party is put into a position of either acquiescing to the latter’s demands (which are in and of themselves unfair or wrongful) or suffering a serious business loss if accession is withheld.

Id. (citations omitted).

[¶ 18.] While tacitly approving this doctrine we specifically stated that because of the facts in Drier “[i]t is not jurisdictionally ripe that we now approve or disapprove of the business compulsion/economic duress doctrine.” Id. We have not had occasion to revisit the issue until today.

[¶ 19.] “Many states have adopted the modern doctrine of ‘business compulsion’ or what is sometimes referred to as ‘economic duress.’ ” 25 AmJur2d Duress and Undue Influence § 6 (1996). “The doctrine of economic duress applies only to special, unusual, or extraordinary situations in which unjustified coercion is used to induce a contract ... under such circumstances that the victim has little choice but to accede.” Newburn, 657 So.2d at 852. The states adopting economic duress as a defense limit its availability by requiring that three elements be met to justify its application. Basically, these three elements are:

1. One side involuntarily accepted the terms of another; and
2. That circumstances permit no other reasonable alternative; and
3. That said circumstances were the result of a coercive wrongful act of the opposite party.

See e.g., Oskey Gasoline & Oil Co., Inc., v. Continental Oil, 534 F.2d 1281, 1286 (8th Cir.1976); Saint Alphonsus Med. Center, 861 P.2d at 77; Mellon, 493 N.W.2d at 703; Zeilinger, 823 P.2d at 657. All three elements must be met to sustain a defense of economic necessity. Id.

[¶ 20.] To establish the first prong of this test, the plaintiff has the burden to “go beyond the mere showing of a reluctance to accept and of financial embarrassment.” Oskey, 534 F.2d at 1286. There must be a demonstration of acts on the part of the defendant which produced economic duress. It “must be proven by evidence that the duress resulted from the defendant’s wrongful and oppressive conduct and not by plaintiffs necessities.” Id. “The entering into a contract with reluctance or even dissatisfaction with its terms because of economic necessity does not, of itself, constitute economic duress invalidating the contract.” Newburn, 657 So.2d at 852.

[¶ 21.] In addition, the second prong requires that the circumstances permit no other reasonable alternative. Os-key, 534 F.2d at 1286. “In determining whether a reasonable alternative is available, we employ an objective test.” Zeil-inger, 823 P.2d at 658. Therefore, “the outcome depends on the circumstances of each case.” Id. The availability of a legal resolution is one such circumstance. Os-key, 534 F.2d at 1286.

[¶ 22.] The third prong requires (a) coercive wrongful acts on the, part of the other party and (b) a causal link between the coercive wrongful acts and the circumstances creating economic duress. Id. These acts include acts which are criminal or tortious. Id. A claim of economic duress cannot be based upon a claim that one has been the victim of a hard bargain. Newburn, 657 So.2d at 852. The party asserting economic duress must establish they were the victim of unlawful or unconscionable pressure. Id.

[¶ 23.] All negotiations inherently involve a certain amount of pressure and coercion. However, to satisfy the requirements of economic duress “that pressure must be wrongful and not all pressure is •wrongful.” 25 AmJur2d Duress and Undue Influence § 7 (1996). A party’s actions, rather than motive, govern the determination of wrongful and coercive. Id. A defense of economic necessity cannot be maintained when a party’s actions are lawful, or threats to carry out that which the law entitles them to do. Id. Factors to be considered for economic duress include: the age and mental ability, financial condition, business expertise, absence of good faith, adequacy of consideration and the adequacy of a legal remedy of the party seeking relief. Id.

[¶ 24.] Recognizing that a defense of economic duress is available in South Dakota, we must determine whether these jury instructions were in error. “Under our standard of review we construe jury instructions as a whole to learn if they provided a full and correct statement of the law.” Veeder v. Kennedy, 1999 SD 23, ¶ 32, 589 N.W.2d 610, 618 (citations omitted). Jury instructions that mislead, conflict or confuse the jury create reversible error. Schaffer v. Edward Jones & Co., 1996 SD 94, ¶ 19, 552 N.W.2d 801, 808. We employ a two prong approach to jury instructions: “A party challenging as erroneous a jury instruction must show not only ‘that the instruction was in error, but also that it was prejudicial error to the effect that under the evidence, the jury ... probably would have returned a different verdict.’ ” Feeder, 1999 SD 23 at ¶ 34, 589 N.W.2d at 618.

[¶ 25.] Jury instruction 23 provided:

Economic duress or business compulsion voids a contract induced thereby. Business compulsion, or economic duress, will generally be available where one party to a contract, in difficult economic straits, is called upon to comply with demands made by the other contracting party who is at least partly to blame for the former’s strained condition and who is often in a position of superior bargaining power, and the former party is put into a position of either acquiescing to the latter’s demands, which are in and of themselves unfair or wrongful, or suffering a serious business loss if agreement is withheld.

This general statement was taken from Drier and was never intended to be used verbatim as a jury instruction.

[¶ 26.] Jury instruction 24 provided:

To prove that the mutual release is unenforceable due to economic duress or business compulsion, the plaintiff must prove each of the following elements by the greater weight of the evidence:
(1) wrongful acts or threats by defendant;
(2) financial distress caused by those wrongful acts or threats;
(3) and the absence of any reasonable alternative to the terms presented by the wrongdoer.
“Wrongful acts or threats” are acts which are criminal, tortious or even merely wrongful in the moral sense. (Emphasis added).

[¶ 27.] A comparison of these instructions with applicable law reveals that each instruction creates a different legal standard for economic duress. Instruction 23 allowed the jury to find economic duress if the agreement was “unfair” or that Dunes was “suffering a serious business loss” that is “partly to blame from defendant’s conduct” and permitted “acquiesc[ence]” rather than the required involuntary consent. Instruction 23 allowed a finding of economic duress based on circumstances less egregious than required by law and does not mandate the consideration of Dunes’ reasonable alternatives or the proper causation requirement. Instruction 23 was in error in that it substantially reduced the standard for economic duress in these respects. Additionally, instruction 24 allowed the consideration of a wrongful act to include those “merely wrongful in the moral sense.” We reject these as improper statements of the law of economic duress.

[¶ 28.] A decision to merely “acquiesce” does not rise to the level of coercion required to prove economic duress. When read conjunctively with instruction 24, these instructions conflict and mislead or confuse the jury by failing to require the proper elements. When read as a whole, as we are required to do, these instructions are an inadequate statement of the law. Veeder, 1999 SD 23 at ¶ 32, 589 N.W.2d at 618. Through the relaxed standards identified in instruction 23, the defendant had an unfair advantage. These jury instructions as a whole do not “correctly state the law and inform the jury.” See Isaac, 522 N.W.2d at 760. While instruction 24 is closer to stating the applicable law, absent the language on morally wrongful conduct, it failed to cure the defects present in instruction 23. Therefore, the instructions were in error and we reverse.

[¶ 29.] 3. WHETHER DUNES FAILED TO MEET ITS BURDEN ON ECONOMIC DURESS, THEREBY REQUIRING A DIRECTED VERDICT OR JUDGMENT NOTWITHSTANDING THE VERDICT.

[¶ 30.] At the close of Dunes case-in-chief, CKI made a motion for a directed verdict which was denied. After the jury’s finding of economic duress, CKI made a motion for judgment notwithstanding the verdict, which was also denied. The trial court’s ruling on a motion for judgment notwithstanding the verdict is reviewed by the abuse of discretion standard. Treib v. Kern, 513 N.W.2d 908, 914 (S.D.1994). We give great deference to the trial court and the jury with regard to findings of fact and credibility determinations, but we review questions of law de novo, with no deference given to the trial court’s legal conclusions. City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771.

[¶ 31.] In reviewing the record, even in the light most favorable to the jury’s verdict, we are unable to find sufficient evidence to support a finding of economic duress. Dunes has failed to prove the requirements necessary for economic duress. Therefore, it was error for the trial court to deny OKI’s motion for judgment notwithstanding the verdict.

[¶32.] To establish economic duress, Dunes was required to demonstrate that no reasonable alternative existed but to accede to the wrongful and coercive demands of CKI. This requirement was not met on these facts. We employ an objective test to determine whether reasonable alternatives were available to a party asserting economic duress as a defense. See Zeilinger, 823 P.2d at 658. Dunes had the option of terminating their affiliation with CKI or filing suit. It is apparent from the record that these options were known to Dunes and the topic of much discussion. As indicated, several of the members urged rejection of the settlement agreement and proposed terminating the management contract and bringing suit against CKI. In fact, this is exactly what Dunes did two months after the agreement was signed. Clearly, Dunes consisted of sophisticated members and investors, and was well represented by experienced, competent lawyers. Dunes’ decision to enter into this settlement agreement was the result of an informed and deliberate decision. The proposals to either terminate the association with CKI or seek a legal remedy were not unreasonable alternatives.

[¶ 33.] We acknowledge that a party asserting economic duress under these circumstances has a difficult burden to overcome. The defense of economic duress will not generally be available absent special, unusual or extraordinary circumstances. See Newburn, 657 So.2d at 852. Dunes has failed to demonstrate that this was such an occasion.

[¶ 34.] Therefore, we reverse and direct judgment consistent with this opinion. Based on our disposition of this case, we need not address Dunes assertion of error concerning rebuttal testimony.

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

[¶ 36.] AMUNDSON, J, concurs in result.

AMUNDSON, Justice

(concurring in result).

[¶ 37.] I agree with the majority that Dunes failed to show fraud or economic duress on the part of CKI. I, however, must part company due to the majority’s failure to apply Minnesota law, rather than South Dakota’s. As the majority points out, Dunes failed to show that one of the public policy exceptions to the validity of a choice of law provision, i.e. fraud or economic duress, exists. The majority recognizes that the settlement agreement provides that it “shall be construed in accordance with the laws of the State of Minnesota,” but curiously fails to express why that state’s law should not apply.

[¶ 38.] There is a presumption of validity for choice of law clauses. Elgar v. Elgar, 238 Conn. 839, 679 A.2d 937 (1996); Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763 (D.C.Cir.1992); Delhomme Indust. Inc. v. Houston Beechcraft Inc., 669 F.2d 1049 (5th Cir.1982). Unless the challenger to the clause clearly shows it to be against public policy, the clause will be enforced. S. Leo Harmonay Inc. v. Binks Mfg. Co., 597 F.Supp. 1014 (S.D.N.Y.1984), judgment aff'd, 762 F.2d 990 (2nd Cir. 1985).

Courts favor, and tend to uphold, choice of law provisions in contracts, particularly when such provisions are used in interstate transactions. Finally, a court will be more likely to uphold the provisions of a contract made in a business transaction than the terms impressed by adhesion on an unknowledgeable consumer. The more commercial the context of the transaction ... the greater the need for validation and stronger the presumption of validity.... The burden of showing illegality is upon the party asserting it and it is not sufficient merely to create suspicion and suggest doubts as to its illegality.

Delhomme, 669 F.2d at 1058-59 (internal citations omitted). The mere allegations of fraud and economic duress do not overcome this heightened burden. At a minimum, the trial court should have made a preliminary ruling as to whether the contract containing the choice of law clause was invalid under South Dakota law before it applied such law. See Restatement (Second) of Conflicts of Laws § 187 cmt. b, illus. 3; see also Unarce v. Staff Builders, Inc., 61 F.3d 912 (9th Cir.1995) (unpublished opinion).

[¶ 39.] I submit Dunes did not overcome its burden of proving the clause invalid by merely alleging fraud and economic duress. In fact, the jury found against Dunes on the issue of fraud, and the issue was not appealed. If we allowed the mere allegations of one party to overcome contractual obligations, then what is to stop every plaintiff subject to an apparently unfavorable choice of law provision from making frivolous allegations of fraud or economic duress. Contract law should not depend on the legal tactics of the allegedly aggrieved party. While the end result is the same under Minnesota law, as economic duress is not recognized in that jurisdiction, the majority should explain why the bargained for, at arms length agreement of the parties does not control. The majority provides no authority for its non-observance of the parties’ agreement.

[¶ 40.] Therefore, I concur in result only.

      . See infra discussion ¶¶ 30-33.

      . See Newburn v. Dobbs Mobile Bay Inc., 657 So.2d 849, 852 (Ala. 1995); Zeilinger v. SO-HIO Alaska Petroleum Co., 823 P.2d 653, 657 (Alaska 1992); Saint Alphonsus Med. Center v. Krueger, 124 Idaho 501, 861 P.2d 71, 77 (1992); Mellon v. Norwest Bank, 493 N.W.2d 700, 703 (N.D.1992); see also 25 AmJur2d Duress and Undue Influence § 7 (1996).

      . CKI proposed the following instruction:
      Plaintiff must prove by a preponderance of the evidence that circumstances permitted no alternatives. If you find that at the time of entering into the Settlement Agreement, Plaintiff possessed a legal remedy of refusing to sign and, instead, suing the Defendants for damages, or operating the restaurant themselves, the Plaintiff has failed to show that circumstances permitted no other alternative.
      It would not have been error under these circumstances to give this instruction if it had been modified to provide for "reasonable” alternatives.

      . It is interesting to note that during their deliberation, the jury requested the definition of "acquiesce” from the trial court. The trial court provided the following definition: To agree without arguing; to comply without protest, to comply. This does not meet the legal requirement of coercion or involuntary consent.

      . Note that we are not overturning a valid jury verdict. This verdict was based on incorrect jury instructions and flawed. Based on proper jury instructions, we conclude that reasonable minds would not differ on the non-existence of economic duress under these circumstances.


author: KONENKAMP, Justice. AMUNDSON, Justice

text:
    2001 SD 38
    Michael Lee WILSON, Plaintiff and Appellant, v. Eric G. LEWNO, Defendant, and Dakota Silo Systems, Inc., a/k/a Dakota Silo, Inc., Defendant and Appellee.
    No. 21198.
    Supreme Court of South Dakota.
    Considered on Briefs on March 22, 2000.
    Decided March 21, 2001.
    Rehearing Denied May 1, 2001.
    Renee Christensen of Bonynge & Christensen, Sioux Falls, SD, Attorneys for plaintiff and appellant.
    Cheryle Wiedmeier Gering of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for defendant and appellee Dakota Systems.
   KONENKAMP, Justice.

[¶ 1.] Michael Wilson appeals a summary judgment for the defendants in his action for negligent entrustment of a motor vehicle. We reverse and remand.

Background

[¶ 2.] On April 26, 1997, Wilson and a friend left Sioux Falls to travel to Water-town and visit the friend’s mother. Before leaving, Wilson’s friend also arranged to meet with an acquaintance of his, Eric Lewno, at Lewno’s home in South Shore. Wilson and his friend drove directly to South Shore and arrived at Lewno’s residence in the late afternoon or early evening. After awhile, Wilson, his friend, Lewno and Lewno’s girlfriend eventually went to town and drank at two different bars in the South Shore community. The foursome left the last bar at approximately ten p.m. Lewno then offered to give Wilson and his friend a ride in a Mustang automobile that he had been doing some bodywork on and that he was driving that night. During the ride, Lewno attempted a sharp turn and flipped the Mustang over in the ditch. The accident allegedly caused serious and permanent bodily injury to Wilson.

[¶ 3.] Wilson later learned that the Mustang Lewno drove the night of the accident was owned by Dakota Silo Systems, Inc. (Dakota), Lewno’s employer and a corporation owned and operated by Lew-no’s father. Wilson also learned that Lew-no had suffered alcohol problems since his youth and that, several years before the accident, his driver’s license had been suspended for a period of twenty-five years. Wilson brought a negligence action against Eric Lewno and an action for negligent entrustment of a motor vehicle against Dakota. Dakota moved for summary judgment. The motion was granted and the order was certified as final pursuant to SDCL 15 — 6—54(b). Wilson appeals.

Genuine Issues of Material Fact on Negligent Entrustment

[¶4.] Viewing the evidence in a light most favorable to Wilson yields genuine issues of material fact sufficient to defeat summary judgment for Dakota on negligent entrustment of its motor vehicle. See SDCL 15-6-56(c); Sorrels v. Queen of Peace Hosp., 1999 SD 133, ¶ 5, 601 N.W.2d 606, 608. This Court has long recognized the tort of negligent entrustment, first outlining its elements in Bock v. Sellers, 66 S.D. 450, 457, 285 N.W. 437, 440 (1939):

It is now generally held that, “An owner who lends his automobile to another, knowing that the latter is [an] incompetent, reckless, or careless driver, is liable for such person’s negligence; the owner’s liability in such cases is based upon his own negligence in intrusting the automobile to such person. Intrusting the car to a minor child known to be a reckless and incompetent driver ... constitutes an act of negligence for which the owner is liable.” 5 AmJur 696.

See also Robe v. Ager, 80 S.D. 597, 606, 129 N.W.2d 47, 51 (1964) (owner or person in charge of operation of motor vehicle may be guilty of negligence if he permits an incompetent, inexperienced, and knowingly reckless and accident prone person to drive).

[¶ 5.] Bock and its progeny make clear that an essential element to this cause of action is an act of entrustment or consent to use the subject vehicle. See 7A AmJur2d Automobiles and Highway Traffic § 643 (1980) (liability for negligence of incompetent driver to whom motor vehicle is entrusted arises from act of entrustment with permission to operate it). See also Jackson v. Searcy, 628 So.2d 887, 889 (Ala.Civ.App.1993) (essential ingredients of cause of action for negligent en-trustment include an entrustment of the vehicle). Dakota argues that there is no showing of any express act of entrustment or consent in the present record. Entrustment or consent may be implied, however. See American Family Ins. Group v. Howe, 584 F.Supp. 369, 371 (D.S.D.1984). To establish implied entrustment or consent, there must be a “showing of [a] course of conduct or practice known to the owner and acquiesced in by him that would lead to an implication of permission for a particular venture.” Western Casualty & Surety Co. v. Anderson, 273 N.W.2d 203, 205 (S.D.1979). Or as amplified in Howe, 584 F.Supp. at 372:

Implied permission arises upon consideration of such factors as the past and present conduct of the insured, [the] relationship between the driver and the insured, and [the] usage and practice of the parties over an extended period of time prior to the use in question. In addition, some courts have stated that the usage and practice of the parties should be such that would indicate to a reasonable mind that the driver had the right to assume permission under the particular circumstances, (citations omitted).

[¶ 6.] Here, deposition testimony establishes that Lewno’s father owned and operated Dakota and was responsible for its business and management affairs. While the father maintained that he prohibited Lewno from driving any corporate vehicles, there is substantial testimony in the record that Lewno frequently did so nonetheless. Lewno’s girlfriend testified that she dated Lewno for approximately a year before the accident, that she was with him two or three times a month, and that he frequently drove her around in the Mustang while they were together. She further testified that she thought Lewno owned the Mustang because “he pretty much drove [it] everywhere” and that for a long period of time she was not even aware his driver’s license had been revoked.

[¶ 7.] There is also testimony that Lewno was allowed to drive other corporate vehicles. Lewno’s girlfriend testified that he not only drove the Mustang, but other corporate vehicles before the accident to such destinations as Dakota’s office and the home of Lewno’s parents. Lewno himself admitted that he occasionally drove service trucks after obtaining permission from his father or his older brother and that his brother was usually with him when he’ drove.

[¶ 8.] In addition, the depositions establish that, from December of 1996 to the time of the accident, Lewno’s father entrusted possession of the Mustang to Lew-no to complete some bodywork on the vehicle. During this time, the car was located in a garage that Lewno rented, and Lewno testified that after the vehicle was fixed, his father even agreed to sell it to him.

[¶ 9.] In view of the above testimony and, particularly, the evidence that the father entrusted the Mustang to Lewno with the intent to sell it to him, the credibility of the father’s claim that he did not intend for Lewno to actually drive the vehicle should be tested in a jury trial. Genuine issues of material fact exist on whether Lewno had implied permission to use the Mustang on the night of the accident. See American Family Ins. Group, 584 F.Supp. at 372 (whether implied permission to use vehicle existed at time of accident presents question of fact).

[¶ 10.] Reversed and remanded.

[¶ 11.] MILLER, C.J., and SABERS and GILBERTSON, JJ., concur.

[¶ 12.] AMUNDSON, J., dissents.

AMUNDSON, Justice

(dissenting).

[¶ 13.] For the reasons set forth in my writing in Estate of Trobaugh, 2001 SD 37, 623 N.W.2d 497,1 respectfully dissent.

      . Because of the similarity of issues in this case and Estate of Trobaugh v. Farmers Insurance Exchange et al, 2001 SD 37, 623 N.W.2d 497, release of this decision coincides with the release of the decision in Trobaugh.

      . SDCL 15-6-54(b) provides:
      When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.