#28438, #28445-r-DG
2019 S.D. 6

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA


                                      ****
CASSANDRA SKJONSBERG,                        Claimant and Appellee,

      v.

MENARD, INC. and
PRAETORIAN INSURANCE
COMPANY,                                     Employer, Insurer and
                                             Appellants.


                                      ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                      ****

                       THE HONORABLE JOHN PEKAS
                                Judge

                                      ****

JEFFREY A. COLE
WILLIAM SIMS of
Northern Plains Justice, LLP
Sioux Falls, South Dakota                    Attorneys for claimant and
                                             appellee.


J.G. SHULTZ of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota                    Attorneys for employer, insurer
                                             and appellants.


                                      ****
                                             CONSIDERED ON BRIEFS
                                             ON AUGUST 27, 2018
                                             OPINION FILED 01/16/19
#28438, #28445

GILBERTSON, Chief Justice

[¶1.]        Cassandra Skjonsberg suffered a workplace injury to her right foot

that required surgery while employed by Menard, Inc. (Employer). The South

Dakota Department of Labor and Regulation awarded partial summary judgment in

favor of Skjonsberg for her incurred medical expenses. After a two-year delay,

Skjonsberg filed a second motion for partial summary judgment to recover the

existing medical expenses. Employer and its insurer, Praetorian Insurance Co.

(Insurer), paid the outstanding medical expenses and claimed a decision on the

second motion was unnecessary because the issue was now moot. The Department

nonetheless granted partial summary judgment in favor of Skjonsberg and denied

Employer and Insurer’s subsequent motion for reconsideration. On appeal, the

circuit court affirmed the Department’s decision. The parties each appeal various

aspects of the court’s decision. We reverse and remand.

                          Facts and Procedural History

[¶2.]        On November 25, 2011, Skjonsberg fractured her right foot while at

work for Employer. Skjonsberg was prescribed a device for her foot called a “Roll-A-

Bout” to assist her in moving around. Employer and Insurer refused to pay for the

device and Skjonsberg instead used crutches and a “CAM boot.” Skjonsberg

underwent surgery at Core Orthopedics in Sioux Falls on December 23, 2011.

During recovery, on January 16, 2012, Skjonsberg sustained a right fibular ankle

fracture after allegedly walking with the crutches and CAM boot. The injury

required surgical intervention to repair.




                                            -1-
#28438, #28445

[¶3.]         Skjonsberg incurred medical expenses related to the two injuries.

However, after a dispute arose regarding coverage, Employer and Insurer stopped

paying temporary total disability benefits and medical bills. As a result, Skjonsberg

filed a petition for hearing with the Department on November 7, 2012.

[¶4.]         On April 2, 2013, Skjonsberg requested discovery consisting of 102

interrogatories and 35 requests for admissions. After multiple attempts to get

Employer and Insurer to answer the discovery requests, Skjonsberg moved for

partial summary judgment, seeking recognition from the Department that both her

injuries were work related and that Employer and Insurer were responsible for her

medical expenses. Employer and Insurer resisted Skjonsberg’s motion and

contended that her discovery requests were burdensome and excessive.

[¶5.]         On May 21, 2014, the Department entered its decision and order on

Skjonsberg’s motion for partial summary judgment in favor of Skjonsberg. The

Department rejected Employer and Insurer’s contentions, and required Employer

and Insurer to cover the medical expenses for both of Skjonsberg’s injuries.

Skjonsberg’s medical expenses went unpaid for two years. 1

[¶6.]         On September 9, 2016, Skjonsberg filed a second motion for partial

summary judgment with the Department seeking payment of her unpaid medical

expenses. Employer and Insurer responded to Skjonsberg’s motion on October 12,



1.      The parties claim different reasons for the delay in paying Skjonsberg’s
        medical bills. Employer and Insurer claim that Skjonsberg failed to properly
        respond to discovery requests seeking the proper party to pay; rather,
        Skjonsberg responded to the discovery requests by supplying only medical
        bills. Skjonsberg claims Employer and Insurer deliberately delayed the
        payments to extend litigation.

                                         -2-
#28438, #28445

2016, by sending a letter to the Department that claimed Skjonsberg’s outstanding

medical expenses were being resolved. On October 31, 2016, Employer and Insurer

submitted an affidavit in response to Skjonsberg’s second motion for partial

summary judgment stating Skjonsberg’s outstanding medical bills totaling

$8,236.76 had been resolved by agreement with the health care providers.

Employer and Insurer also filed a two-sentence resistance to Skjonsberg’s motion

for partial summary judgment claiming the issue was moot. Skjonsberg presented

no statement disputing these facts submitted by Employer and Insurer.

[¶7.]         The Department granted Skjonsberg’s motion on November 29, 2016.

The order repeated the Department’s conclusions from its first order by stating that

Employer and Insurer were responsible for the medical expenses for both of

Skjonsberg’s injuries. The same day, Employer and Insurer moved to reconsider on

the grounds that the issue of payment for Skjonsberg’s medical expenses was moot.

The Department denied Employer and Insurer’s motion on April 3, 2017.

[¶8.]         Employer and Insurer then appealed to the circuit court on May 1,

2017. However, Employer and Insurer failed to file a statement of issues within ten

days pursuant to SDCL 1-26-31.4. 2 The parties filed their respective briefs and

Skjonsberg pointed out Employer and Insurer’s failure to abide by SDCL 1-26-31.4.

Employer and Insurer then requested leave to file a statement of issues, which the

2.      SDCL 1-26-31.4 provides in relevant part:
              Within ten days after the filing of the notice of appeal as
              required by § 1-26-31, the appellant shall file with the clerk of
              the circuit court a statement of the issues the appellant intends
              to present on the appeal and shall serve on the other parties a
              copy of such statement.


                                          -3-
#28438, #28445

circuit court granted. On September 25, 2017, the circuit court affirmed the

Department’s order.

[¶9.]         Employer and Insurer appeal, raising one issue: whether the

Department erred in granting Skjonsberg’s second motion for partial summary

judgment when they claimed the issue was moot. Also, by notice of review,

Skjonsberg appeals the circuit court’s decision granting Employer and Insurer leave

to file a statement of issues. 3 Skjonsberg argues that if this Court is inclined to

reverse the circuit court’s ultimate decision, we should apply a “plain error”

standard of review for failure to abide by SDCL 1-26-31 and affirm the

Department’s order.

                                Standard of Review

[¶10.]        On appeal from a circuit court’s decision under SDCL 1-26-37, we

undertake “the same review of the administrative tribunal’s action as did the circuit

court.” Dakota Trailer Mfg., Inc. v. United Fire & Cas. Co., 2015 S.D. 55, ¶ 11,

866 N.W.2d 545, 548 (quoting Peterson v. Evangelical Lutheran Good Samaritan

Soc., 2012 S.D. 52, ¶ 13, 816 N.W.2d 843, 847). We perform this review “unaided by

any presumption that the [circuit] court is correct.” Terveen v. S.D. Dep’t of Transp.,

2015 S.D. 10, ¶ 6, 861 N.W.2d 775, 778 (quoting Brown v. Douglas Sch. Dist.,

2002 S.D. 92, ¶ 17, 650 N.W.2d 264, 269). Therefore, as we recently stated, our

3.       SDCL 15-26A-22 provides:
              An appellee may obtain review of a judgment or order entered in
              the same action which may adversely affect him by filing a
              notice of review and section B of the docketing statement
              required by subdivision 15-26A-4(2) with the clerk of the of the
              Supreme Court within twenty days after the service of the notice
              of appeal.

                                           -4-
#28438, #28445

review of an agency’s decision is as follows: “Questions of law are reviewed de novo.

Matters of reviewable discretion are reviewed for abuse. The agency’s factual

findings are reviewed under the clearly erroneous standard. The agency’s decision

may be affirmed or remanded but cannot be reversed or modified absent a showing

of prejudice.” Lagler v. Menard, Inc., 2018 S.D. 53, ¶ 22, 915 N.W.2d 707, 715

(citations omitted).

                                 Analysis and Decision

[¶11.]         Employer and Insurer claim that the Department erred in granting

Skjonsberg’s second motion for partial summary judgment seeking payment of

medical expenses because the issue was moot. Employer and Insurer claimed they

had already paid Skjonsberg’s medical bills prior to the Department’s decision.

[¶12.]         “This Court renders opinions pertaining to actual controversies

affecting people’s rights.” Larson v. Krebs, 2017 S.D. 39, ¶ 13, 898 N.W.2d 10, 15

(quoting In re Woodruff, 1997 S.D. 95, ¶ 10, 567 N.W.2d 226, 228). When a claim

becomes moot not during the pendency of an appeal but prior to the final order from

which a party appeals, we must vacate the ruling of the lower court as moot and

remand with instructions to dismiss. See, e.g., Phelps-Roper v. Koster, 815 F.3d 393,

397-98 (8th Cir. 2016) (vacating a judgment on appeal for mootness when the

challenged statute was repealed while the action was pending in district court and

remanding with instructions to dismiss). 4



4.       See, e.g., United States v. Corrick, 298 U.S. 435, 440, 56 S. Ct. 829, 832, 80 L.
         Ed. 1263 (1936) (“While the District Court lacked jurisdiction, we have
         jurisdiction on appeal, not of the merits, but merely for the purpose of
         correcting the error of the lower court in entertaining the suit.”); In re
                                                               (continued . . .)
                                              -5-
#28438, #28445

[¶13.]       Here, no controversy exists or existed before the Department that the

Employer and Insurer are responsible for Skjonsberg’s medical expenses from her

two injuries. The Department’s 2014 order—which was not appealed—had already

determined that Skjonsberg’s injuries were work-related and that Employer and

Insurer were liable to compensate her for her medical expenses. Further, before the

Department entered the 2016 summary judgment order, Employer and Insurer

presented undisputed facts in resistance to Skjonsberg’s motion for summary

judgment that the medical expenses at issue had been fully resolved with the

medical providers. This fact is supported in the record by the October 31, 2016,

affidavit of counsel for the Employer and Insurer, J.G. Shultz. Shultz stated that

“since October 12, 2016 . . . I have resolved the billings outlined . . . by agreement

with the health care providers.” Attached to the affidavit was a complete list of

dates, descriptions, and amounts of Skjonsberg’s medical expenses. The total of

these expenses is listed as $8,236.76.

________________________
(. . . continued)
         Scruggs, 392 F.3d 124, 129 (5th Cir. 2004) (“[W]hen a matter on appeal is
         determined to have become moot, not merely prior to or during the appeal but
         prior to the date of the order being appealed from, we must dismiss as moot
         the appeal before us and vacate as moot the ruling from which the appeal
         was sought.”); In re Di Giorgio, 134 F.3d 971, 974 (9th Cir. 1998) (holding
         that if a case becomes moot before the trial court’s decision, the appellate
         court has jurisdiction to correct the trial court’s error in entertaining the
         suit); S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 730 (10th Cir.
         1997) (finding the mootness destroyed the jurisdiction of both the district
         court and the appellate court and remanding with directions that the claim
         be dismissed); Nome Eskimo Cmty v. Babbitt, 67 F.3d 813, 816 (9th Cir. 1995)
         (“We must vacate the substantive determination [of the district court],
         without intimating any view on whether it was correct, because mootness
         precluded the exercise of judicial power.”); Flynt v. Weinberger, 762 F.2d 134,
         135-36 (D.C. Cir. 1985) (explaining that a dismissal for mootness will “clear
         the path for future relitigation of the issues raised.”)

                                           -6-
#28438, #28445

[¶14.]       Because Employer and Insurer paid Skjonsberg’s medical expenses,

the Department lacked jurisdiction to grant summary judgment—the issue of

payment was moot before the Department and remains moot before this Court. A

decision on the issue of whether the Department erred in granting Skjonsberg’s

second motion for partial summary judgment “will have no practical legal effect

upon the existing controversy.” Sullivan v. Sullivan, 2009 S.D. 27, ¶ 11,

764 N.W.2d 895, 899 (quoting Investigation of the Highway Constr. Indus. v.

Bartholow, 373 N.W.2d 419, 421 (S.D. 1985)). “No matter how vehemently the

parties continue to dispute the [issue] that precipitated the lawsuit, the case is moot

if the dispute ‘is no longer embedded in any actual controversy about the plaintiffs’

particular legal rights.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S. Ct. 721,

727, 184 L. Ed. 2d 553 (2013) (quoting Alvarez v. Smith, 558 U.S. 87, 93, 130 S. Ct.

576, 576, 175 L. Ed. 2d 447 (2009)).

[¶15.]       Nonetheless, exceptions to the mootness doctrine exist that could allow

a full determination of Employer and Insurer’s appeal. One such exception is the

“‘capable of repetition, yet evading review’ exception, which applies when: ‘(1) the

challenged action is in its duration too short to be fully litigated prior to cessation or

expiration, and (2) there is a reasonable expectation that the same complaining

party will be subject to the same action again.’” Larson, 2017 S.D. 39, ¶ 14,

898 N.W.2d at 16 (quoting Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 8,

804 N.W.2d 388, 391). Even if we were to assume Employer and Insurer could meet

the first prong, there is no indication in the record that the issue would recur. The

repetition must be more than just a theoretical possibility: rather, there must be a


                                           -7-
#28438, #28445

“‘demonstrated probability’ that the same controversy will recur involving the same

complaining party.” Boesch v. City of Brookings, 534 N.W.2d 848, 850 (quoting

Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 1184, 71 L. Ed. 2d 353 (1982)).

As Employer and Insurer cite the unlikely recurrence of the present issues and facts

of this case, the exception is not applicable. 5 See Sullivan, 2009 S.D. 27, ¶ 13,

764 N.W.2d at 900 (stating that “repetition of the exact issue is unlikely” when a

controversy is premised purely on factual circumstances).

[¶16.]          Therefore, the claim for medical expenses set forth in Skjonsberg’s

motion for partial summary judgment became moot, prior to the Department’s final

order granting summary judgment, and was moot when the circuit court reviewed it

on appeal. We accordingly reverse the circuit court’s judgment affirming the

Department’s decision, and remand to the circuit court with instructions that the

court order the Department to vacate its order and dismiss Skjonsberg’s claim for

medical expenses set forth in her motion for partial summary judgment dated

September 9, 2016. See Corrick, 298 U.S. at 440, 56 S. Ct. at 832 (noting that an

appellate court has jurisdiction for the limited “purpose of correcting the error of the

lower court in entertaining the suit.”). In light of our holding, we need not consider

Skjonsberg’s argument posed in her notice of review.

[¶17.]          KERN, JENSEN, and SALTER, Justices, concur.


5.       Another exception to the mootness doctrine is the public interest exception,
         which requires: “general public importance, probable future recurrence, and
         probable future mootness.” Larson, 2017 S.D. 39, ¶ 16, 898 N.W.2d at 17
         (quoting Sedlacek, 437 N.W.2d at 868). Because Employer and Insurer’s
         issue does not “affect[] the legal rights or liabilities of the public at large[,]”
         id. (quoting Boesch, 534 N.W.2d at 850), it does not meet the confines of this
         exception.

                                              -8-
