Herr v. Dakotah, Inc., No. 21424.

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER, Chief Justice.
• Citation: 613 N.W.2d 549,2000 SD 90
• Decision Date: 12 July 2000
• Docket Number: No. 21424.
• Parties: Lillian HERR, Claimant and Appellee, v. DAKOTAH, INC., Employer and Appellant, and CNA Insurance Company, Insurer and Appellant.

613 N.W.2d 549
2000 SD 90

Lillian HERR, Claimant and Appellee,
v.
DAKOTAH, INC., Employer and Appellant, and
CNA Insurance Company, Insurer and Appellant

No. 21424.

Supreme Court of South Dakota.

Considered on Briefs May 30, 2000.

Decided July 12, 2000.

613 N.W.2d 551

Ronald L. Schulz, Thomas J. Linngren of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Watertown, South Dakota, Attorneys for appellee

Kenneth L. Chleborad of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for appellants.

MILLER, Chief Justice.

[¶ 1.] In this workers' compensation case we hold that the circuit court committed reversible error by dismissing an appeal on the basis of res judicata prior to receiving either a statement of issues or the parties' briefs. We further hold that the issue raised on appeal was not res judicata. Finally, we hold that it was error for the circuit court to assert jurisdiction over the case, since the Department of Labor had retained continuing jurisdiction over all unsettled compensation issues.

FACTS

[¶ 2.] A similar aspect of this workers' compensation case was previously considered by this Court. On October 25, 1999, we summarily affirmed both the circuit court's entry of judgment in favor of Herr for accrued workers' compensation benefits, and the denial of Dakotah, Inc.'s, and its insurer CNA's (collectively "Dakotah") motion for relief from judgment. See Herr v. Dakotah, Inc., 604 N.W.2d 868 (S.D. 1999) (aff'd. mem). The convoluted history of this case is summarized below.

[¶ 3.] The action began when Herr filed claims for workers' compensation benefits against Dakotah for work-related injuries to her elbow, neck and shoulder. A hearing was held before the South Dakota Department of Labor, Division of Labor and Management, (Department) to adjudicate the claims. On February 24, 1998, Department issued its first set of findings and conclusions in connection with Herr's claim. It found that her elbow and neck problems arose out of and in the course of her employment at Dakotah. Accordingly, it concluded that Dakotah was responsible for any benefits to which she was entitled.

[¶ 4.] The findings and conclusions did not specify the amount of workers' compensation benefits to which Herr was entitled. Because of this omitted information, she petitioned Department requesting the issue be reconsidered in order to make such a determination. Department granted the petition and heard the matter a second time with respect to the issues of Herr's average weekly wage, corresponding benefit rate, and interest. It entered a second set of findings and conclusions on August 25, 1998.

[¶ 5.] Pursuant to SDCL 62-7-31, Herr obtained a judgment in circuit court based on Department's second findings and conclusions. Dakotah filed a motion for relief from the judgment, raising factual issues already settled. The circuit court denied the motion on the basis of res judicata, and we summarily affirmed.

[¶ 6.] In November 1999, after our summary affirmance, Dakotah filed a petition with Department, requesting "that a determination be made that [Herr] has reached maximum medical improvement as of July 26, 1996 [the date of one medical report that allegedly established Herr had reached maximum medical improvement], and for a determination of benefits owed to [Herr]." In response, Herr filed a motion

613 N.W.2d 552

to dismiss the petition under SDCL 15-6-12(b)(5) on the basis of res judicata

[¶ 7.] Contemporaneous with the proceedings at the administrative level, Herr obtained entry of a second judgment in circuit court for benefits accrued since the first judgment had been entered. In response, Dakotah filed a motion to set aside the second judgment. The circuit court granted Dakotah's motion, pending a resolution of issues before Department. However, the court reserved the right to re-enter the judgment depending on the outcome of the issues being considered at the administrative level.

[¶ 8.] On January 13, 2000, Department granted Herr's motion to dismiss Dakotah's petition for hearing, concluding that the issues presented therein were res judicata. Based on Department's decision, Herr filed an affidavit in circuit court requesting that the previously vacated judgment be reinstated. At the same time, the court received a notice of appeal from Dakotah. Herr countered Dakotah's notice of appeal with a motion to dismiss on the basis of res judicata.

[¶ 9.] After a hearing on all these issues, the circuit court reinstated the previously vacated judgment in favor of Herr, granted her motion to dismiss Dakotah's notice of appeal, and dismissed Dakotah's notice of appeal under SDCL 15-6-12(b)(5) on the basis of res judicata.

[¶ 10.] Dakotah appeals, raising three issues:

1. Whether the circuit court erred in dismissing the appeal on the basis of res judicata prior to briefing.

2. Whether the circuit court erred in concluding that the issue raised on appeal was res judicata.

3. Whether the circuit court had jurisdiction to enter the second judgment for accrued benefits.

STANDARD OF REVIEW

[¶ 11.] SDCL 1-26-37 governs our review of agency decisions. This Court "shall `give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does other appeals from the circuit court.'" Wernke v. State of South Dakota Dep't of Soc. Servs., 1999 SD 32 ¶ 4, 590 N.W.2d 260, 262 (quoting SDCL 1-26-37). When the issue is a question of fact, the actions of the agency are judged by the clearly erroneous standard. Rasmussen v. South Dakota Dep't of Labor, 510 N.W.2d 655, 657 (S.D.1993). "If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse." Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (citations omitted)). When the issue is a question of law, the actions of the agency are fully reviewable. In re State & City Sales Tax Liab., 437 N.W.2d 209, 211 (S.D.1989). Mixed questions of law and fact are also fully reviewable. Permann v. Department of Labor, Unemp. Ins. Div., 411 N.W.2d 113, 119 (S.D.1987).

DECISION

[¶ 12.] 1. The circuit court erred in dismissing Dakotah's appeal on the basis of res judicata prior to briefing.

[¶ 13.] Department entered its order dismissing Dakotah's petition for hearing on January 20, 2000. Four days later Dakotah filed a notice of appeal in the circuit court, which was quickly countered with another motion to dismiss by Herr. Dakotah did not file a statement of issues or a brief in support of its appeal. (The statutory time limits to do so had not expired. See SDCL 1-26-31.4; 1-26-33.2.) On January 26, 2000, the court heard oral arguments in the matter. The following day it...