*1 87 therefore, held, genuine the ment was a issue of material Id. The court fact was in- inappropriate summary claimed the State right-of-way which was dis- against purchasers. It further position. as valid It follows the trial court’s no notice facts held that the Cinkos had granting summary judgment order to West inquiry that the put them on sufficient to Central must be reversed and this case right-of-way might extend boundary of the such, remanded. As we need not reach the portion paved and traveled beyond the issue inverse condemnation briefed Id. highway. at 849. parties. Here, right Central claims that its West accordingly reverse and remand this power line construct the northwest to proceed- case to the trial court for further which, from the 1966 easement arises ings. purposes, was not all intents and recorded. attempted Central Nor has West All the Justices concur. designate right-of-way its claimed time to SABERS, J., having not been a member placed upon markers the land in con- with undisputed of the court at the time this action was troversy. It is that the south- court, participate. in reference submitted to the did not ern transmission line was built easement, the 1965 and that the 1966 executed after the line was easement was place. Although unclear from the
record, appears physi- that there was no itself, (after property indicia on the
cal constructed), to indicate
southern line was right-of-way had been
that an additional along property.
acquired James River’s Under the standard set forth SDCL 17- ANDERSON, Sherry Claimant rationale, Cinko 1-4 and the Appellant, issue of material fact exists as to whether notice, James River had actual or construc- INSURORS, DAKOTA WESTERN tive, put of facts sufficient them on Employer Appellee. rights inquiry of West Central’s claimed despite pres- the 1966 easement under No. power line. ence of the southern Supreme Dakota. Court South deciding summary judgment whether proper, we must view the evidence most Sept. Hamaker, favorably to James River. N.W.2d at 517. Whether or not notice is
given question of or received is a fact to be the trier of fact. Colorado
determined Dufield,
Interstate Gas Co. v. 9 Kan. (1984).
App.2d 681 P.2d Sim Haven, T.p., in Larson v. New Olst
ilarly, 447, 165 County,
ed 282 Minn. (1969), Supreme the Minnesota Court ques ordinarily jury
stated that notice is “[Sjummary judgment appropriate
tion. legal, questions.” dispose not factual
Hamaker, supra.
Therefore, upon all the facts of based case, we hold that whether James Riv-
er had constructive notice of the 1966 ease-
circuit court affirmed the of decision Secretary (Sec- of of Labor retary) upholding appeal an referee’s deter- overpaid that mination claimant was unem- ployment insurance benefits. ap- Claimant peals and we affirm.
Statement Facts Appellant (Anderson) Sherry Anderson employed by was McKinney-Wudel In- Agency (McKinney) surance from March 1981, until it sold in was June Anderson’s employment McKinney ter- 15, 1984, on minated June new time, took owners As of over. that she making was per bookkeep- hour as Anderson, er. a divorcee with two chil- dren, also supplementing was her income during period working by a cocktail as waitress. 19, 1984,
On June Anderson filed a claim with the South Dakota of La- bor, Unemployment Insurance Division (Department) for benefits. She received pamphlets setting numerous forth the De- laws, partment’s rules, policies con- cerning eligibility unemployment to collect (benefits) insurance benefits and maintain- ing eligibility. Anderson also re- policy ceived a written about statement required She contacts. was to make two in-person job by contacts week verified (cards) “Work Search Verification Cards” supplied by Department. which were signed Anderson “Work ’ Policy” Search Verification which states signed cards hiring must be representative employer official or of each policy contacted. This further “If states: you produce the signed cannot Work Hickey, Bangs, McCullen, Michael M. proof your Search Verification Cards as Simmons, Butler, Foye Rapid City, & for week(s), in any you search will be appellant. claimant and ineligible week(s) held for benefits for that possibly subsequent for weeks.” Johnson, Dept, Drew South Dakota Labor, Div., Unemployment Ins. for em- undisputed It is under- ployer appellee. stood all this information she because passed quiz regard a written it. She
SABERS, Justice. also policies discussed the various with a appeal arising This out of a July claim claims taker on She apply insurance benefits. The also directed Job Services to termined accept any suitable work offer that some of the cards submitted work and to signed by refusal. Anderson were not there was cause for the em- unless ployers, forged. but that their names were McKinney, leaving Ander- prior Just Anderson admitted opening learned with West- son about signed a written statement to that (Western). Shortly ern Dakota Insurers however, stated, per- effect. She that she thereafter, spoke with Western’s own- sonally made each contact even *3 (Larson) er/manager Gary Larson about signed the cards herself. Some em- job prospect. this Larson told her that the ployers they indicated that had talked to during training the part-time would ses- be cards, signed her but had not the and oth- by September 1 or sion and full-time 1ers said that she did not contact them at him Anderson informed that she needed addition, weekly all. none of the claim employment. full-time by cards turned in Anderson from June 23 1984, spoke At the end of June Anderson 15, 1984, September to indicated that she job again. the He indi- with Larson about position had refused at the Western. certainly job cated that there would be a 30, 1984, Department On the October opening but he was unsure about when the found that Anderson had refused an offer Although full-time. Lar- job would become good of suitable without work cause and quote figure, son did not a dollar he stated had failed to make an active search for salary “probably the would come employment ineligible which rendered her making to what Anderson had been close” for benefits. The further de- past. in the overpaid termined that Anderson had been job. Anderson then heard about another $1,404, in the amount of and assessed an According testimony, to her the was to penalty against administrative her for that 1984, July salary start of with a of amount. $16,000 per annum. Anderson stated that (referée), Appeal The Referee affirmed job, she was recommended for this sub- the conclusion that Anderson thereto, in response mitted a resume job contacts and failed to had made obtain According called about it several times. to appropriate on the cards. Department, a card was not submitted The further found that Anderson referee concerning employer Anderson this con- misrepresented facts to secure or in- had tact. This never materialized. by wrongfully signing the crease benefits meantime, In the Larson called Anderson employers’ signatures on the cards. Secre- with a formal offer to work for Western. tary and the circuit court affirmed the ref- days think He told her to about it for a few appeals Anderson to eree’s decision and get and then back touch with him. Fail- this court. Anderson, ing to hear from Larson called Issues again going
her to find out if she accept the offer. Anderson then informed the trial court The issues are whether waiting Larson that she was for a better 1) finding that Anderson: failed to erred Thereafter, paying job. Western hired a search, 2) refused adequate make an work person August third who started work on cause, 3) without mis- suitable work 15, 1984, forty-hour for a hour represented to secure or in- information week. benefits, 4) overpaid crease and was bene- fits. continued to receive benefits 30,1984. investigation An of until October Scope Administrative Review of Anderson’s contacts was commenced amended, September of 1984. The 1-26-37 as Under SDCL admin- Department’s investigator, Peep, Dana de- court makes the same review the employers Development, Kirkeby Estate. 1. The were: Davies and Lewis & Real Ranch, Commerce, Rapid City Hart Chamber of agency’s as the ... istrative decision circuit must be deduced from the facts of court, by any presumption unaided that the each ... and may case cover reasons circuit court’s decision was correct. State which are extraneous employment to the Miller, Div. Rights Human personal strictly claimant, pro- (S.D.1984); N.W.2d 46 n. 2 Raml v. vided, however, personal reasons Home, 381 Jenkins Methodist involve real and substantial circumstanc- (S.D.1986); Application 242-243 North compel es which the decision to refuse Co., western Bell Tel. ‘good suitable rest on faith.’ 415-416 do not substitute faith, context, as used in this ‘[G]ood judgment agency our that of as to positive part includes conduct on weight questions of evidence on of fact which claimant is consistent with agency’s erro unless the decision self-sup- desire work and be neous, arbitrary, capricious, or is or charac porting.’ terized abuse of discretion or a clear Com., Id. at quoting Trexler v. Unem- ly unwarranted exercise discretion. Id. *4 Bd., ployment Comp. 27 Pa.C. case, In Department this the had the (1976) (citations omitted). A.2d proving burden of that Anderson was ineli case, In Anderson’s the record shows gible Dept. for benefits. Zeig S.D. employed that she bookkeep- had been as a Lab., Ins., Unemployment approximately er for years four at McKin- SDCL 61-6-152 states ney City, in Rapid where resided. she At fails, an unemployed that when individual released, the time was she Anderson was cause, good apply without for suitable working on a full-time basis an ending accept offered, work or suitable work pay job rate The hour. she deny Department the shall benefits. The refused bookkeeping at Western was also a trial court found that met its position, Rapid in City, located and which prima by introducing facie burden the hourly started at an rate of forged $5.63. Ander- Search Work Verification Cards and position son through claimed that she refused this job evidence of Larson’s offer which Anderson employment The trial because she needed full-time refused. court held that Anderson failed to rebut this applied evi she had for a because better agree. dence. We paying However, job. even the job part- Western would out have started
Discussion time, it to become was full-time no later Moreover, determining September In than the job a is evi- whether suitable particular for person, department position a the dence that indicates when the was the considers criteria forth in August 15, set SDCL eventually filled on it was Although 61-6-16.3 our statute does not full-time. “good apply
define
cause” for
failure
for
offer,
The trial court
job
job
failure
found that when Lar
accept
or
we
offer,
son
Pennsylvania
job
elected
the
called Anderson with
he
ap
to follow
the
proach
Unemployment
in Matter
did not
Ap
precise salary
describe
detail the
Fickbohm,
Rather,
peal
(S.D.
ther to
for
suitable
available
work when
shall
the
consider
of risk involved to
health,
morals,
employment
safety,
so directed
the
physical
office or the
his
his
department
accept
or to
prior training,
experience
suitable work when
fitness and
his
him,
earnings,
customary
prior
length
offered
or to
to his
return
his
self-employment,
any,
if
prospects
securing
when so directed
work in his
local
department,
occupation,
the
customary
shall be
claimant
denied
distance of
and the
benefits ...
from
available work
his residence.
Furthermore,
point,
find that at this
Anderson knew from secure
Depart-
benefits.
previous
Larson that
required
her
conversation with
ment is
to hold a claimant liable
comparable
salary
was
to what she had
overpayment
of benefits obtained
earning,
and that the
would
through
been
even-
the nondisclosure or misrepresen-
tually
full-time. Since the “better
become
tation of a material fact. SDCL 61-6-23.5
materialized,
never
paying job”
we find Here,
employers
some of the
told the de-
upon
incumbent
was
Anderson to
partment
that Anderson never contacted
follow-up Larson’s sure offer in order to
all,
them at
and that the
which
“positive
demonstrate
conduct ... consist-
appeared on the cards were not theirs.
ent with
desire to work[.]”
clearly supports
This
the conclusion that
Fickbohm,
search. In administrative cases where the circuit requires merely agency
SDCL 61-6-224 De court reviews the record partment evidence, deny anyone scope benefits to who takes no new our willfully misrepresented has any fact review is clear. provides: (irrespective
4. SDCL61-6-22 another of a material fact misrepresenta- Any willfully whether such nondisclosure or individual who has or fraudu- fraudulent) lently misrepresented any tion was known or ... has re- fact to secure or any any increase benefits under nied benefits for not less than one week and not the date such act is discovered. title de- shall be ceived sum as benefits ... while receipt conditions for the of benefits ... were fifty-two exceed weeks from and after shall, either be not fulfilled ... ... held liable misrepresentation or fraudulent to have such sum deducted from future repay benefits ... or shall be liable to elect, department, department may as the provides part: 5. SDCL 61-6-23 equal so sum to the amount received ... who, Any person by reason of the nondis- misrepresentation by closure or him or 92 (S.D.1986); review of the decision of the 30 Stavig v.
[O]ur South Dakota agency administrative Patrol, our standard Highway 166, 371 N.W.2d 168 clearly is the erroneous If standard. (S.D.1985); Co., Erickson v. Minnesota 358 Gas agency’s circuit court reversed the deci 526, (S.D.1984); N.W.2d 528 and Matter of sion, and after review of the evi “[i]f Bd., South Dakota Management Water agency dence we deem findings clear 119, 351 (S.D.1984). N.W.2d erroneous, ly we affirm the circuit court. Lastly, there is a different rule on evi If agency findings clearly are not dence if by deposition. submitted See erroneous, then the circuit court was Nold, 468, 474, 185 Clark & Son v. 85 S.D. clearly concluding.” erroneous so 677, (1971). N.W.2d Obviously, where State, Miller, Rights Div. Human deponent appeared has not before a lower (S.D.1984). 349 N.W.2d 46 n. 2 court testifying, the members of this Valley Co-op, Kienast v. Sioux Court can deponent’s review a testimony as presented it were initially. to us Likewise, if the circuit court affirmed the instance, such latter clearly erroneous decision, agency’s if and after review of the specified 15-6-52(a) rule as in SDCL agency findings evidence we deem the inapplicable. erroneous, clearly we reverse the circuit If agency findings court. are not clear erroneous,
ly then the circuit court was not concluding. erroneous so See
Application Northwestern Bell Tel. Co., (S.D.1986); 382 N.W.2d 415-16
South Dakota Federation v. Wa Wildlife Bd., Management ter 29-