South Dakota Bd. of Nursing v. Jones, 19803

• Decision Date: 09 July 1997
• Docket Number: No. 19803,19803
• Citation: 566 N.W.2d 142,1997 SD 78
• Parties: SOUTH DAKOTA BOARD OF NURSING and South Dakota Board of Medical and Osteopathic Examiners, Plaintiffs and Appellees, v. Judy K. JONES, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 142

566 N.W.2d 142

1997 SD 78

SOUTH DAKOTA BOARD OF NURSING and South Dakota Board of Medical and Osteopathic Examiners, Plaintiffs and Appellees, v. Judy K. JONES, Defendant and Appellant.

No. 19803.

Supreme Court of South Dakota.

Argued Feb. 18, 1997.

Decided July 9, 1997.

Terry N. Prendergast of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for plaintiff and appellee Board of Nursing.

Charvin H. Dixon, Sioux Falls, for plaintiff and appellee Board of Medical and Osteopathic Examiners.

Bret Chancelor Merkle of Samp & Merkle, Sioux Falls, for defendant and appellant.

AMUNDSON, Justice.

¶1 A permanent injunction was issued against Judy K. Jones (Jones), enjoining her from the practice of midwifery without a license in Union County in January of 1993. The South Dakota Board of Nursing and the South Dakota Board of Medical and Osteopathic Examiners (collectively referred to as Board) brought an order to show cause requesting Jones be held in contempt for violating the injunction. After a hearing, the trial court found Jones in contempt. She appeals and we affirm.

FACTS AND PROCEDURE

¶2 In 1992, Board received a report that Jones was engaging in the practice of midwifery in Union County, South Dakota, without a license as required by SDCL 36-9A-2. ¹ When Jones failed to respond to a verified complaint, Board gave notice of intent to take default judgment. The notice was thereafter withdrawn with Jones stipulating to a preliminary injunction enjoining her from acts of practicing midwifery without a license.

¶3 The parties stipulated to facts to which Jones swore under oath on July 22, 1992. The trial court adopted these stipulated facts and issued a memorandum opinion and an order of permanent injunction executed on January 3, 1993. Jones was permanently enjoined from practicing any acts or medical functions of a licensed midwife as defined in SDCL 36-9A-13, ² or holding herself out as able to perform such acts. Jones' attorney was served with the injunction on January 7, 1993, and Jones was personally served on January 12, 1993. No appeal was taken and the permanent injunction remains in place.

¶4 In 1995, Jones was indicted on a charge of practicing as a nurse midwife without a license during the birth of a baby in Yankton County, South Dakota, in violation of SDCL 36-9A-35. ³ The Yankton County State's Attorney brought the charge against Jones. She was ultimately acquitted of the charge.

¶5 On May 26, 1995, Board brought an order to show cause requesting Jones be held in contempt for violating the injunction. Jones was alleged to have acted as a midwife during the birth of a baby in Clay County, South Dakota, in direct violation of the 1993 permanent injunction. Jones filed a motion for appropriate relief by requesting the permanent injunction be dissolved. After a hearing was held on July 15, 1996, the trial court found Jones in contempt. Next, the court imposed a sixty-day jail sentence for contempt, but suspended the execution of the sentence on the condition that Jones not violate the injunction in the future and file a bond of $5,000, which was "conditioned upon the condition that she no longer engages in practicing as an unlicensed midwife in violation of the permanent injunction and commits no further violations of the permanent injunction[.]"

¶6 On July 26, 1996, Jones filed a motion for reconsideration, which was summarily denied. Jones appeals this denial, raising the following issues:

I. Whether Board is precluded from proceeding against Jones for contempt of the injunction due to the criminal proceedings against Jones in 1995.

II. Whether the trial court has subject matter jurisdiction.

III. Whether there is sufficient evidence that Jones willfully violated the injunction.

IV. Whether the bond is excessive.

V. Whether SDCL ch 36-9A, as applied, violates constitutional rights of Jones.

STANDARD OF REVIEW

¶7 Our standard for reviewing cases involving determinations of both law and fact was clearly stated in City of Colton v. Schwebach, 1997 SD 4, p 8, 557 N.W.2d 769, 771:

Our standard of review of the trial court's findings of fact is under a clearly erroneous standard. Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995); Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 660 (S.D.1995). The trial court's findings will not be disturbed unless the court is "firmly and definitely convinced a mistake has been made." Jasper, 540 N.W.2d at 401. Conclusions of law, on the other hand, are reviewed under a de novo standard, giving no deference to the trial court's conclusions of law. Id.

DECISION

¶8 I. Election of Remedies.

¶9 Jones maintains that, pursuant to SDCL 36-9A-40, Board is precluded from proceeding against her via injunction due to the criminal proceedings in 1995. SDCL 36-9A-40 provides: "An action for injunction is an alternative to criminal proceedings, and the commencement of one proceeding by the boards constitutes an election." Therefore, she claims the commencement of criminal proceedings prevented the subsequent contempt proceedings. Further, Jones claims the criminal proceedings against her constitute an abandonment of restrictions imposed in the injunction.

¶10 The trial court rejected this argument, stating:

The Permanent Injunction was for an act committed in Union County, and the injunction was entered for that act and no criminal charges were brought. The election not to proceed criminally at that time was the election between the injunction and criminal act. When the acts in Yankton County were brought criminally, there was an election as to those two actions, but that election did not act to terminate the prior injunction. If those two acts were the basis of contempt, there would be a question of double jeopardy, placing the defendant in a position to be punished in essence criminally and for contempt, twice for the same act.

Thus, the trial court held any subsequent acts of Jones regarding midwifery provided for an independent election by Board. We review this legal determination under a de novo standard. City of Colton, 1997 SD 4, at p 8, 557 N.W.2d at 771.

¶11 By the use of the phrase "commencement of one proceeding" in SDCL 36-9A-40 (emphasis added), the legislature's intent to address one injury or wrong is demonstrated. See, e.g., SDCL 36-9A-36 (referring to the prosecution of a "single act"). Furthermore, under the election of remedies doctrine, the purpose is to prevent a double recovery for a single wrong. See, e.g., JCA Partnership v. Wenzel Plumbing & Heating, Inc., 978 F.2d 1056, 1061 (8th Cir.1992); Vesta State Bank v. Independent State Bank of Minn., 518 N.W.2d 850, 855 (Minn.1994); Whittom v. Alexander-Richardson Partnership, 851 S.W.2d 504, 506 (Mo.1993); Wang v. Wang, 447 N.W.2d 519, 524 (S.D.1989); Swain v. Leahy, 111 N.C.App. 884, 433 S.E.2d 460, 461 (1993); 25 AmJur2d Election of Remedies § 2 (1996); 28A CJS Election of Remedies § 2 (1996). As we stated in Wang, the " 'doctrine of election of remedies applies only to choosing between different remedies allowed by law on the same state of facts, where the party has but one cause of action, one right infringed, one wrong to be redressed.' " 447 N.W.2d at 524 (quoting Bankers Trust Co. v. Pacific Employers Ins. Co., 282 F.2d 106, 110 (9th Cir.1960)) (emphasis added). This case, however, does not involve the same injury or wrong. Rather, the initial permanent injunction, the criminal proceedings, and the subsequent contempt proceedings all involved separate alleged instances of midwifery in three different counties. It is undisputed these instances involved different sets of facts. See, e.g., Casper v. Paine Webber Group, Inc., 787 F.Supp. 1480, 1509-10 (D.N.J.1992) (holding an election to sue under one statute did not waive the right to sue under a different statute because the claims were derived from a separate set of facts); Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173, 175 (1993) (noting the doctrine was inapplicable because the remedies did not arise from the same cause of action); Breniman v. Agricultural Consultants, Inc., 829 P.2d 493, 497 (Colo.Ct.App.1992) (stating, "The concept applies when different remedies, based on the same set of facts, are provided for a given wrong."); 25 AmJur2d Election of Remedies § 1 (1996) (stating, "[A]n election of remedies is the act of choosing between two or more different and coexisting methods of procedure and relief allowed by law on the same set of facts."); 28A CJS Election of Remedies § 2 (1996) (noting that election of remedies arises from the same set of facts).

¶12 Each instance of midwifery is a separate transaction. There is no abandonment of the permanent injunction by the allowance of the commencement of criminal proceedings against Jones. Since each act of midwifery involves separate facts, Board retains the right to choose what remedy to pursue in each instance.

¶13 We, therefore, hold the trial court did not err by finding Board was not precluded from initiating contempt proceedings due to the prior criminal proceedings against Jones.

¶14 II. Subject Matter Jurisdiction.

¶15 Jones argues there was an insufficient showing by Board regarding the trial court's subject matter jurisdiction according to SDCL 21-34-2. ⁴ Specifically, she contends the affidavit alleging contempt fails to demonstrate the case is one over which the trial court has jurisdiction. In addition, Jones maintains the affidavit made no showing that she violated the order. Although the issue of jurisdiction was not raised at the trial court level, we will address it on appeal pursuant to State v. Eidahl, 486 N.W.2d 257, 259 (S.D.1992); State v. Lyerla, 424 N.W.2d 908, 912 (S.D.1988).

¶16 On May 28, 1996, Board submitted an affidavit of Diana Vander Woude, R.N., M.S. (Vander Woude) in support of an order to show cause. This affidavit and attached exhibits are considered to be the complaint. Otten v. Otten, 245 N.W.2d 506, 508 n* (S.D.1976). In the...