South Dakota Public Assurance Alliance v. Aurora County , 2011 S.D. LEXIS 108 ( 2011 )

#25795-rev & rem-SLZ
2011 S.D. 53IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
SOUTH DAKOTA PUBLIC
ASSURANCE ALLIANCE, Plaintiff and Appellee,
v.
AURORA COUNTY, a Subdivision
of the State of South Dakota, Defendant and Appellant,
and
E.L. THOMPSON FARMS, LTD., Defendant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
AURORA COUNTY, SOUTH DAKOTA
****
THE HONORABLE SEAN M. O’BRIEN
Judge
****
ROY A. WISE
KIMBERLY A. DORSETT of
Richardson, Wyly, Wise, Sauck,
& Hieb, LLP
Aberdeen, South Dakota Attorneys for plaintiff and
appellee SD Public Assurance
Alliance.
****
CONSIDERED ON BRIEFS
ON AUGUST 11, 2011
OPINION FILED 08/31/11
ROGER A. TELLINGHUISEN
BRAD P. GORDON of
Tellinghuisen & Gordon, P.C.
Spearfish, South Dakota Attorneys for defendant
and appellant, Aurora County.
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ZINTER, Justice
[¶1.] In 2001, the South Dakota Public Assurance Alliance (SDPAA), a local
government risk pool, negotiated with Aurora County (County) to provide what is
essentially insurance coverage. 1 During negotiations, the two entities had a
number of communications concerning coverage for zoning matters. County alleges
that in the communications County disclosed a potential claim involving a pre-
existing zoning dispute between County and a local dairy farm, E.L. Thompson
Farms, Ltd. (Thompson Farms). In 2002, after coverage was finalized, Thompson
Farms sued County over the zoning dispute. County defended but was found liable
for damages that are yet to be determined. SDPAA then filed this action, seeking a
declaration that it did not have a duty to defend or indemnify. 2 SDPAA’s coverage
defenses were based on three alternative theories: (1) that County failed to provide
timely notice of the claim and SDPAA was prejudiced by the delay; (2) that County
failed to disclose material facts relating to the claim; and (3) that the Thompson
1. “Technically, [risk pool coverage] is not insurance, but a liability, self-
insurance pool. . . . However, coverage concepts are similar to insurance so
we apply the same general principles.” S.D. Pub. Entity Pool for Liability v.
Winger, 1997 S.D. 77, ¶ 8 n.5, 566 N.W.2d 125, 128 n.5.
2. SDPAA’s amended complaint requests an order declaring that “SDPAA has
no obligation to defend the underlying lawsuit or to indemnify County
against any sums which may be adjudicated against it pursuant to that
lawsuit.” County indicates in its brief that it has not asserted and does not
intend to assert a claim for the expense incurred in defending the liability
determination. The trial court’s order, however, only states that SDPAA had
no duty or obligation to defend in the Thompson Farms lawsuit; there is no
mention of the duty to indemnify. In light of the inconsistencies but lack of
material distinction for purposes of this action, our reference to either duty
includes the other.
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Farms claim was a “known loss” or “loss in progress” at the time coverage was
negotiated. In a jury trial on these coverage defenses, the circuit court admitted a
letter signed by County confirming its request for retroactive coverage and
disclaiming knowledge of any pre-existing incidents that could result in a loss. At
the same time, the court excluded as parol evidence the parties’ pre-contract
communications regarding coverage for zoning issues, including communications
that could be interpreted as having disclosed the Thompson Farms zoning dispute.
The jury found for SDPAA on all three theories. We reverse and remand for a new
trial because the excluded coverage communications were not parol evidence offered
to change the terms of the contract.
Facts and Procedural History
[¶2.] County was negotiating for liability and property insurance in late
2000 and early 2001. In December 2000, Aurora County Auditor Susan Urban
invited SDPAA to make a presentation to the Aurora County Commissioners.
[¶3.] American Risk Pooling Consultants, Inc. (ARPCO) was the
administrator and manager for SDPAA, handling marketing as well as
underwriting, risk management, and risk assessment. Through a subcontract,
Hagan Benefits, Inc. (Hagan) also handled marketing and some underwriting
responsibilities for SDPAA. Ladene Bachtell, on behalf of Hagan and SDPAA, made
the presentation to the County Commissioners on February 6, 2001. During
February and March, various memos, faxes, letters, and oral communications were
exchanged between County and Bachtell, as well as between Bachtell and her
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assistant Joanne Gries. Some of the communications involved discussions
regarding coverage for zoning disputes and “inverse condemnation.”
[¶4.] The Aurora County Commission accepted a quote from SDPAA and
paid the premium on February 28, 2001. The principal coverage documents were
the Legal Defense and Claim Payment Agreement (Agreement) and the
Intergovernmental Contract for the SDPAA (Contract), but other documents were
involved. Urban sent a letter to Bachtell explaining that County did not have all
the documents that Bachtell requested the County sign and return. Bachtell sent a
responsive letter to Urban on March 2, 2001, acknowledging receipt of the premium
check. Bachtell also enclosed the Contract, as well as a property rider, a resolution,
and an updated statement of values. All required documents were signed and
returned to SDPAA.
[¶5.] On March 6, 2001, Bachtell sent Urban another letter (a cover letter)
regarding County’s understanding of the retroactive coverage. The cover letter
stated in part:
Enclosed is a letter regarding the retroactive coverage that the
County has requested. This letter is verification that the County
understands that this coverage applies to unknown, unreported
claims only. Please have this letter sign [sic] and returned to our
office as soon as possible.
County Commissioner Delayne Persson signed the enclosed letter (hereinafter
referred to as the March 6 Letter). It stated:
We are requesting Retroactive Coverage to 3/1/91 for Officials
and Law Enforcement Liability.
We understand that this coverage applies to UNKOWN,
UNREPORTED losses only. We are not aware of any incidents
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that may result in a loss under this area of coverage prior to
3/1/01.
[¶6.] County was, however, aware of an incident that could have led to a loss
as a result of the pre-existing zoning dispute with Thompson Farms. A 1998
County zoning ordinance placed restrictions on farming operations, including
limitations on farming operations involving more than 1,500 “animal units.” Before
enactment of the zoning ordinance, Thompson Farms had started the first phase of
an expansion of its dairy operation. Thompson Farms asked County to “grandfather
in” its dairy operation. Sometime after the ordinance went into effect, Thompson
Farms was ready to move into the next phase of its planned expansion but was
limited by the new ordinance. On January 22, 2001, counsel for Thompson Farms
sent Aurora County State’s Attorney John Steele a letter indicating that Thompson
Farms was contemplating a suit against County alleging “a taking and damages” as
a result of the zoning ordinance. The letter suggested a meeting with the County’s
Commissioners to talk about alternatives to litigation. Steele shared this letter
with the County Commissioners and met with them in executive session to discuss
the threatened litigation.
[¶7.] On March 22, 2001, Thompson Farms applied for a building permit to
build another barn in order to “fully utilize” its facility. Thompson Farms also
asked County for a variance to exceed the 1,500 animal-unit cap. County denied the
building permit and variance. Thompson Farms unsuccessfully appealed the denial
to circuit court.
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[¶8.] In April 2002, Thompson Farms filed suit against County as a result of
its inability to expand its operation under the new ordinance. A trial on liability
was held in May 2008, Judge Bruce Anderson presiding. In February 2009, Judge
Anderson ruled that County’s zoning actions violated Thompson Farms’ right to
substantive due process and constituted a regulatory taking of Thompson Farms’
property without just compensation. The court found that the date of the taking
was March 22, 2001. The court stayed a jury trial on damages until this declaratory
action was resolved.
[¶9.] In March 2009, County gave SDPAA notice of Thompson Farms’ claim.
SDPAA declined to defend or indemnify, asserting that “County failed to notify
[SDPAA] ‘as soon as practicable’ of a situation that ‘may result in a claim’[;] that
there was no reasonable excuse for the County’s failure to give timely notice; and
that [SDPAA] [was] prejudiced by this late notice.” SDPAA then filed this action for
declaratory judgment regarding its duty to defend and indemnify.
[¶10.] Before trial on this declaratory action, SDPAA moved to prevent
County from eliciting any testimony that would tend to contradict the March 6
Letter disclaiming knowledge of any pre-existing incidents that could result in a
loss. SDPAA contended that the March 6 Letter was an endorsement to the
coverage documents and any pre-contract evidence contradicting the letter would be
inadmissible parol evidence. County objected, asserting that the March 6 Letter
was itself inadmissible parol evidence and that the letter violated the integration
clauses in the coverage documents. The circuit court, Judge Sean O’Brien, ruled
that neither the parol evidence rule nor the integration clauses precluded admission
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of the March 6 Letter. On the other hand, the court ruled that the parol evidence
rule prohibited County from introducing the other coverage communications
suggesting that County disclosed the Thompson Farms dispute and that SDPAA
contemplated coverage. The excluded communications included:
 Testimony by two County Commissioners that they specifically talked with
Bachtell about the Thompson Farms’ situation
 A note to the file by Gries dated February 20, 2001, stating “Susan [Urban]
and one of the commissioners called . . . they [ ] had questions regarding
liability for their zoning commission. Please call in the morning.” An arrow
from the word “questions” was drawn to handwritten words “inverse
condemnation”
 A note to the file by Gries dated February 22, 2001, commenting in part:
I got a better explanation of the claim from [Urban] and faxed a
scenario to Laurie [Eikenberry, employee at ARPCO], who ran it
by [Baltasar Capote, an underwriter at ARPCO] and the claims
manager – they both agreed that our policy would cover this
claim. I also told Susan [Urban] this. She was pleased! . . .
 A February 22, 2001, fax from Gries to Laurie at ARPCO reciting a zoning
situation strikingly similar in many respects to the events involving the
Thompson Farms dispute. The note went on to state that:
The finance officer explained to me that their current coverage
did not provide coverage for “inverse condemnation” (whatever
that means!), but they are going to cover it under the E&O
coverage for the zoning commission. They just want to be sure
something like this would be covered under the SDPAA if it
should come up again. 3
[¶11.] The jury found in favor of SDPAA on all three of its coverage defenses,
and the court entered a declaratory judgment ordering that SDPAA was under no
duty to defend County in the Thompson Farms lawsuit. The court determined that
3. Other excluded evidence included: an invoice from Hagan to Urban
explaining that coverage provided to County was bound on February 27,
2001; a clean copy of the invoice sent to Urban, stamped as received on March
2, 2001; a copy of the premium check from County to Hagan dated February
28, 2001; and, a letter Urban sent with the premium check to Bachtell, dated
February 28, 2001, advising that she had not received all the documents to
sign, including the Intergovernmental Contract.
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there was no coverage available because: (1) County failed to provide timely notice
of the Thompson Farms zoning dispute, and SDPAA was prejudiced by the delay in
notice; (2) County failed to disclose material facts relating to the Thompson Farms
dispute, entitling SDPAA to void the Contract and Agreement and relieve SDPAA of
any obligation thereunder as it related to the Thompson Farms claim; and (3) the
“Contract and the Agreement should be reformed to exclude the Thompson Farms’
claim as a ‘known loss’ or a ‘loss in progress.’”
[¶12.] On appeal, we consider the following issues:
1. Whether the circuit court erred in admitting the March 6 Letter.
2. Whether the circuit court erred in excluding evidence of the
coverage communications between County and SDPAA or its
agents.
March 6 Letter
[¶13.] County asserts that admission of the March 6 Letter violated the parol
evidence rule and the integration clauses of the coverage documents. SDPAA
responds that the March 6 Letter was not barred by the parol evidence rule or the
integration clauses because it was intended to be a part of the coverage documents.
The circuit court agreed with SDPAA. The court admitted the March 6 Letter,
concluding that it was an endorsement to the agreement and therefore a part of the
coverage documents. We disagree, but conclude the circuit court did not err in
admitting the letter.
[¶14.] We acknowledge SDPAA’s argument that writings executed together,
even if not contemporaneously, may be interpreted as part of the same contract.
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All writings that are executed together as part of a single
transaction are to be interpreted together. We have recognized
this rule, noting that: “[W]hen two or more instruments are
executed at the same time by the same parties, for the same
purpose and as part of the same transaction, the court must
consider and construe the instruments as one contract.”
Moreover, it is not critical whether the documents were executed
at exactly the same time or whether the parties to each
agreement were identical.
Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D. 1990) (internal citations and emphasis
omitted) (analyzing documents executed in sale of business).
[¶15.] But the March 6 Letter cannot be read as an endorsement; i.e. a
limiting part of the contract. “Limits to coverage, whether in exclusions,
limitations, riders, or endorsements, should be set forth clearly and explicitly.” Fall
River Cnty. v. S.D. Pub. Assurance Alliance, 2001 S.D. 40, ¶ 8, 623 N.W.2d 735, 737
(emphasis added). The parties’ “agreement” here was defined in the coverage
documents as the Agreement “and any endorsements attached hereto.” The
endorsements issued by SDPAA were physically attached to the Agreement and
explicitly stated that the “endorsement modifies the [Agreement] for this benefit
only.” The March 6 Letter was not attached to the Agreement, and the letter did
not purport to modify, add, or delete any benefit or term of the coverage documents.
The March 6 Letter only recited that County had “requested” retroactive coverage,
recited that County “underst[ood]” the retroactive coverage limitations, and
included a statement regarding County’s knowledge of pre-existing incidents that
could lead to losses. This letter – confirming a coverage request, confirming an
understanding of a coverage limitation, and declaring County’s knowledge of
potential claims – contained County’s statements and declarations. It was not an
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endorsement issued by SDPAA modifying, adding, or deleting any term in the
coverage documents. In substance, the March 6 Letter was no different than the
excluded coverage communications. They all involved the parties’ statements
concerning retroactive zoning coverage and pre-existing incidents that could lead to
claims or losses.
[¶16.] Because, as we explain below, neither the March 6 Letter nor the
excluded communications purport to vary, contradict, or change any term of the
coverage documents, their admission for the purposes of litigating SDPAA’s three
coverage defenses would not have violated the parol evidence rule. For the same
reason, the admission of the March 6 Letter would not have violated the
integration clauses of the coverage documents. 4
4. The integration clauses of the coverage documents enumerated the
documents that constituted the entire agreement between the parties. That
enumeration would have only excluded conflicting pre-contract
representations.
The Contract provided:
This Agreement, the Appendix, and the Risk Sharing Certificate
contain the complete Agreement between the parties and no
representations or oral statements made or heretofore given shall
constitute a part of this Agreement. In the event that any provision of
this Agreement is in conflict with or is incompatible with the Appendix
or attachments hereto or the Risk Sharing Certificate issued
hereunder, the terms and conditions of this Agreement shall prevail
and take precedence.
The Agreement provided:
This [Agreement] and the [Contract] constitute the total agreement
between you and us concerning the benefits afforded. The terms of the
[Contract] may only be changed as stated in that document. The terms
(continued . . .)
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Coverage Communications
[¶17.] The circuit court ruled that the excluded coverage communications --
tending to show that SDPAA knew of the Thompson Farms dispute before entering
into the agreement -- contradicted the March 6 Letter and therefore violated the
parol evidence rule. The circuit court’s ruling misapprehended the nature and
effect of the parol evidence rule and the specific purposes for which the March 6
Letter and coverage communications were offered.
[¶18.] South Dakota’s parol evidence rule is codified in SDCL 53-8-5. It
provides that “[t]he execution of a contract in writing, whether the law requires it to
be written or not, supersedes all the oral negotiations or stipulations concerning its
matter which preceded or accompanied the execution of the instrument.” We have
summarized the “nature and effect” of the rule:
It is . . . well settled that parol evidence is inadmissible to vary,
contradict or add to a contract which has been reduced to a
writing that is clear, definite and complete, and in the absence
of fraud, mistake or accident, it will be presumed that the
written agreement expresses the final intention of the parties
upon the subject matter of the contract.
Carr v. Benike, Inc., 365 N.W.2d 4, 6 (S.D. 1985) (emphasis added). Thus, “[i]t is a
long standing principle that parol or extrinsic evidence may not be admitted to vary
the terms of a written instrument or to add to or detract from the writing.” LaMore
Restaurant Group, LLC v. Akers, 2008 S.D. 32, ¶ 30, 748 N.W.2d 756, 764. The rule
is designed “to give legal effect to whatever intention the parties may have had to
______________________________
(. . . continued)
of this Agreement shall not be waived or changed except by
endorsement issued by us to form a part of this Agreement.
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make their writing at least a final and perhaps also a complete expression of their
agreement.” E. Allen Farnsworth, Contracts § 7.3, at 418 (4th ed. 2004). See also
Johnson v. Coss, 2003 S.D. 86, ¶ 21, 667 N.W.2d 701, 708 (noting that while parol
evidence cannot be used to show the substance of an agreement, the evidence in
that case was not offered to establish or change the agreement).
[¶19.] SDPAA’s first coverage defense was based on the contention that
County did not provide timely notice of the Thompson Farms claim and that SDPAA
was prejudiced by the delay. This defense was predicated on an Agreement
provision providing that the “member must see to it that [SDPAA is] notified as
soon as practicable of any situation or injury which may result in a claim.” The
defense was also predicated on a Contract provision that members of SDPAA had
an obligation to “promptly report to [SDPAA] any incident which could result in a
claim being made by or against the Member within the Scope of Coverage.”
[¶20.] The circuit court excluded the coverage communications because they
would have contradicted the March 6 Letter. But there was no term in the March 6
Letter requiring timely notice: those terms were in the Contract and Agreement.
Therefore, the jury decided this coverage defense not by determining the terms of
the Contract and Agreement regarding notice, but by determining whether County
complied with the uncontested terms of the Agreement and Contract requiring
timely notice. The interrogatory to the jury on this defense instructed:
Do you find by greater convincing force of the evidence that
[County] failed to provide timely notice of the [Thompson
Farms] zoning dispute as required by the terms of the Agreement
or Contract?
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If you answered Yes to the preceding question, do you find that
[SDPAA] proved by greater convincing force of the evidence that
[SDPAA] was prejudiced by the delay in providing notice of the
[Thompson Farms] zoning dispute?
(Emphasis added.) The jury answered “yes” to both questions.
[¶21.] In sum, although the coverage communications contradicted portions
of the March 6 Letter (stating that County had no knowledge of “any incidents that
may result in a loss”), the letter was not a part of the coverage documents. Further,
the excluded communications did not purport to change the terms of the Agreement
and Contract requiring the County to provide notice of claims. Finally, the excluded
communications were highly relevant. They were offered to prove compliance with
the terms of the Agreement and Contract requiring timely notice. They were also
offered to rebut SDPAA’s allegation that it was prejudiced by the claimed delay in
providing notice. Because the coverage communications were not offered to
contradict any term of coverage or claims procedure, they did not violate the parol
evidence rule.
[¶22.] SDPAA raised nondisclosure and misrepresentation as its second
defense. SDPAA asserted that County failed to disclose or misrepresented the
Thompson Farms situation when it applied 5 for coverage and when it “certified” in
the March 6 Letter that it was “not aware of any incidents that may result in a
loss.” SDPAA’s theory was also based on an uncontested term of the Agreement.
5. County did not actually fill out the application for coverage. A representative
of SDPAA filled it out based on oral responses provided by County. The
application contains no disclosure of the Thompson Farms situation or any
other possible claim or loss. The application provided in this record is not
signed.
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The Agreement provided: “This Agreement has been issued based upon our reliance
on representations made by you in applying for this Agreement. Intentional
nondisclosure or misrepresentation of any material fact may entitle us to void this
Agreement and relieve us of any obligation hereunder.”
[¶23.] With respect to this defense, the excluded communications conflicted
with the March 6 Letter regarding County’s knowledge of incidents that could result
in claims or losses. But again, to decide this misrepresentation/non-disclosure
defense, the jury was not asked to determine the terms of the Agreement. It was
asked to answer a special interrogatory asking whether County failed to comply
with the uncontested terms of the Agreement prohibiting nondisclosures and
misrepresentations. The jury was asked:
In order to determine whether [SDPAA] is not liable under the
Agreement or Contract due to a misrepresentation, omission,
concealment or incorrect statement, please answer “Yes” or “No”
to a series of questions.
1) Do you find by clear and convincing evidence that [County]:
a) made a misrepresentation(s); or
b) made an omission of certain facts; or
c) concealed certain facts; or
d) made incorrect statements to [SDPAA] about the
zoning dispute with E.L. Thompson Farms?
2) If you answered Yes to the preceding question, do you find by
clear and convincing evidence that [SDPAA]’s knowledge as to
the truth of the misrepresented, omitted, or concealed fact was:
a) material either to the acceptance of the risk, or to the
hazard assumed by [SDPAA]; or
b) that if [SDPAA] had knowledge of the true facts, it
would either;
i) not have issued the coverage; or
ii) would not have issued coverage at the same rate;
or
iii) would not have issued coverage in as large an
amount; or
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iv) would not have provided coverage with respect
to the E.L. Thompson Farms zoning dispute.
(Emphasis added.) The jury answered “Yes” to both questions.
[¶24.] The special interrogatory confirms that the coverage dispute was not
over the terms of the parties’ agreement. The dispute was whether County had
complied with the terms of “the Agreement or Contract.” Thus, like the coverage
defense regarding timely notice, the excluded communications were not offered on
the misrepresentation and nondisclosure defense to alter the terms of the coverage
documents. Because the communications were not offered to contradict or modify
any term of the coverage documents, the communications were improperly excluded
as parol evidence.
[¶25.] SDPAA’s final coverage defense was that the Thompson Farms claim
was a “known loss” or a “loss in progress” when County applied for coverage. We
have not been directed to a contract term in the coverage documents regarding
known losses or losses in progress. The March 6 Letter also contained no purported
term regarding this doctrine although it did contain County’s statement that it
understood no coverage was provided for known losses. It appears that SDPAA’s
coverage defense was based on a common-law theory, submitted to the jury in the
form of an instruction providing:
A doctrine in the law provides that losses which exist at the time
of the inception of the coverage agreement or contract, or which
are substantially probable to occur, are not proper subjects of
insurance. This doctrine exists independent of the particular
terms of a coverage agreement or contract. . . . The ‘known loss’
doctrine applies where the Member [County] knew or had
reason to know that there was a substantial probability that loss
or liability would result from the conduct for which it now seeks
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coverage. The ‘loss in progress’ doctrine applies where the
Member is aware of a threat of loss so immediate that it might
be fairly said that loss was in progress at the time the coverage
was requested or was issued. 6
(Emphasis added.)
[¶26.] The jury decided the known loss defense on a special interrogatory that
provided:
In order to decide if the E.L. Thompson Farms zoning dispute
was a known loss or loss in progress such that coverage does not
exist, please answer “Yes” or “No” to the following questions.
1) Do you find by greater convincing force of the evidence that
[County], at the time it applied for coverage with [SDPAA],
a) knew or had reason to know that there was a substantial
probability that loss or liability would result from Thompson
Farms, or
b) was aware of loss so immediate that it might be fairly said
that loss was in progress at the time the coverage was requested
or was issued?
2) If you answered Yes to the preceding question, do you find by
greater convincing force of the evidence that [SDPAA] . . . did
not contemplate that the E.L. Thompson Farms’ claim would be
covered by the Contract or the Agreement?
The jury answered “Yes” to the first question. Regarding question two, the jury
sent a note to the court stating it was “unclear on what is being asked.” In
response, the court told the jury that “upon further consideration, the jury does not
need to answer question #2 of special interrogatory no. 3.” The court indicated from
the bench that it did not think the question regarding SDPAA’s contemplated
6. Because neither party challenged this instruction, it became the law of the
case. See Alvine Family Ltd. P’ship v. Hagemann, 2010 S.D. 28, ¶ 20, 780
N.W.2d 507, 514. The Court expresses no opinion on the doctrines of “known
loss” or “loss in progress.”
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coverage was necessary in light of the absence of evidence as to whether SDPAA
contemplated coverage for the Thompson Farms claim.
[¶27.] The circuit court correctly observed that County presented no evidence
that SDPAA contemplated coverage for the Thompson Farms claim as asked in
question number two of special interrogatory number three. But that was because
County’s evidence on this point was the excluded coverage communications. Those
communications, if admitted, could have been interpreted to show that SDPAA
contemplated coverage. And again, the excluded communications did not contradict
any term of the coverage documents. The excluded communications were offered
only to disprove the common-law “known loss” doctrine, which under the law of this
case existed “independent of the particular terms of coverage agreement or
contract.” Because the excluded coverage communications were not offered to alter
or contradict any written terms of the agreement, their admission would not have
violated the parol evidence rule.
[¶28.] Reversed and remanded for a new trial.
[¶29.] GILBERTSON, Chief Justice, and KONENKAMP and SEVERSON,
Justices, and BARNETT, Circuit Court Judge, concur.
[¶30.] BARNETT, Circuit Court Judge, sitting for MEIERHENRY,
Retired Justice, disqualified.
[¶31.] WILBUR, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
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