*1 260 Cir.1993). (9th STEELE, Bible, 152, Judge, for F.2d 155 Circuit MIL- 983

as v. LER, Justice, be substan Chief disqualified. on a second trial must Evidence pre tially the former case different application of the law of the ease doc clude result). SABERS, (concurring in Justice Mutual, v. 856

trine. State Farm Stoner Cir.1988). (8th 1195, burden 1197 F.2d my I concur in based on result moving party to facts which is on the show writing Judge and that of DeVine in materially substantially different. Jetter I. Services, Talle v. Neb. Social (1998). 790, 823, Neb. 572 N.W.2d day were in court German heirs their hearing the trial court

because at second proffered, all of the

admitted evidence findings pre

entered on the evidence based solely hearing. at that trial court

sented

specifically held that on the extrinsic based item III of wording evidence and 1999 SD 32 will, that Robert to disinherit his intended WERNKE, Appellant, David heirs Martin survived him. intestate if one; temporary meant The will was to be a v. Robert sim at the time the will was drafted Dakota, STATE of South happen DEPARTMENT ply did not consider what was to if SERVICES, Employer OF him, SOCIAL provi predeceased Martin and made no Appellee, contingency sion for that in his will. Those clearly and there erroneous error of law. no South Dakota Had the Schwab German Labor, Appellee. any substantially presented heirs new evi hearing, at the second would dence No. 20566. apply been less inclined to the law of case was, None being doctrine. and the issue now Supreme Dakota. Court of South litigated appeal. on the first resolved a case is retried under a rule we “When Considered on Briefs Jan. appeal, dictate on that rule becomes the law Ohrt, of the case.” Decided Estate March (Iowa App.1996) (citing Hillrichs v. 1994)). (Iowa Corp.,

Avco request grant of the Schwab

To require

German heirs us to overrule injus

Jetter I. We do not find that manifest by allowing prior

tice will result our stand, and therefore hold that the doctrine precludes law of case the Schwab relitigating

and German heirs from

meaning of item III of Robert’s will.

[¶ 29.] We affirm. AMUNDSON, KONENKAMP and

GILBERTSON, Justices, concur. SABERS, Justice, concurs result.

FACTS AND PROCEDURAL HISTORY of fact of the Adminis- (ALJ) Judge adequately trative Law set forth the facts are listed verbatim below: 1. Employer Claimant worked for as a quality specialist, January control from 12,1997. 1988,to September Employer provides 2. peo- assistance to ple help weatherize their homes. Em- ployer non-profit corporations do the weatherizing. moni- was to non-profit corpora- tor the records of the tions. People

3. receiving who are assistance Employer are called clients. 4. Claimant that knew and understood he was not to socialize clients. Clients of Employer people tend to be vulnerable socializing prob- liability can create Employer. lems for 5, 1997, 5. August On or about Claimant inspecting was a house that had been des- ignated for the program. weatherization The client’s name was Petra Hentschell (Petra). Ashton, Her home was located in South Dakota. houses, normally

6. Claimant did not visit rather, corpora- he non-profit visited the tions. staying Super

7. Claimant was at the evening. Motel Aberdeen that approximately p.m., At 7:00 Claimant Ashton, was at bar in South Dakota. He Hueck, Pierre, SD, saw Petra’s son in the bar and asked him if for appel- Patricia de his mother was at home. Her son did not lant. know. Adam, May, Brent & Wilbur Gerdes Pierre, Dakota, then

Thompson Claimant drove to Petra’s house employ- South opened anybody Department door see if was appellee er and of Social Ser- nobody appeared home. that vices. home. Special Drew C. Johnson Assistant Attor- Aberdeen, Dakota, 10. Claimant left a note Petra’s door

ney General South stated, Wernke-Housing that “Dave In- appellee Department Labor. spector-Petra, Super 8 Motel Room TAPPE, 229-5005, 6th, Judge. 2405 SE call 280- Please you above-I would like to ask (Claimant) appeals [¶ 1.] David Wernke something.” court, a judgment of the trial evening, affirmed 11. Later the decision called deny unemployment compensa- go Labor to him Claimant and asked her tion drink with benefits. We reverse. him. She declined offer. employment. argues He the circuit that he be back then said (the 6, 1997, next court erred as a matter of law in August Ashton on Employer misconduct and that Petra if she wanted work-related

night) and asked respect. in that night. Again, Petra failed to meet its burden have a drink *3 distinguished This Court offer. declined his grounds discharge employee of an for behavior to reported Claimant’s grounds of benefits. for denial Employer. White, Appeal 339 N.W.2d 306 of terminated, Employer Claimant for given Employer for [¶ 6.] reasons attempting ivith a client. to socialize terminating employment a claim for unem- 14. Claimant filed new Initially, upon learning clear. of the conduct on ployment insurance benefits October fact, findings described above in the September with an effective date Rathbun, supervisor, Abbie 28,1997. (Rathbun) gave him notice of her intent to timely appealed 15. Claimant a determi- employment. terminate his Rathbun stated Unemployment nation of the South Dakota terminate, as a reason for her intention to (SDUID) Division that conclud- Insurance that the action to terminate was: discharged ed he was for work-connected just your intended for cause related to Employer misconduct is a reim- following violation of the administrative subject charge bursing employer and is rules: Claimant, (em- paid to for benefits when added.) 55:01:12:05 has violated phasis division, bureau, any department, or insti- decision, court, by The circuit letter [¶ 3.] regulation, policy, tution or order or failed raises affirmed ALJ’s decision. Claimant any oral or written directions relating alleged appeal, several issues on by supervisor person a or other in authori- hearsay regarding errors evidence admitted ty; objections. over Because we reverse on 55:01:12:05 has dis- grounds, need not be ad- other those issues against person criminated another dressed. employment wrong- course of or has taken ful actions another which OF STANDARD REVIEW imputed responsibil- affect the vicarious or of review from 4.] The standard [¶ ity any employ- of the or state other state agencies gov decisions of administrative ee. 1-26-37, provides that erned ALJ, hearing At the before the Rath- Supreme “give Court shall the same def response question bun testified in to a re- fact, erence to the conclusions of garding the for reason Claimant’s termi- judgment law final of the circuit court as nation, that his was for a violation appeals from the circuit court.” does other of the above state administrative rules. law, question the issue is a When reviewable, fully agency’s actions are howev Rathbun’s letter of intent to termi- er. v. South Dakota Rasmussen specific nate was more about the rationale (S.D. 1993). Labor, 510 N.W.2d discharge. Passages behind Claimant’s discharged Whether individual has been that “ Employer’s policy letter referred to that employment for misconduct dis Department expects employees all [t]he qualifies him from Department professional to maintain a law, question insurance benefits is a relationship Department with clients of the is, therefore, fully reviewable this Court. “Exploitation at all times” and that Id. of Social Services is client prohibited grounds and shall be disciplin- added). ary (emphasis action.”

ANALYSIS AND DECISION Finally, arguing ap regard is not to the reason for termination, peal hearing wrongfully that he was terminated from Claimant’s before However, inefficiency, policy it is the mere unsatis- it was learned that conduct, factory as Employer “Socializing perform with a client on failure inability incapacity, good result of faith personal is not basis recommended discretion, judgment error in conduct avoided." should be this mandated belief religious evidence or which belief reasonably type cannot be accommodated of a violation constituted employer is not misconduct. SDCL 61-6- automatic dismissal. 14.1. “[t]aking Exploitation is defined as then, Assuming Employer did unjust advantage of own another one’s wrongfully employ- terminate Claimant’s advantage benefit.” Black’s Law Dictio- ment, question termi- is whether that ed., most, nary, Fifth 1979. At the evidence *4 unemploy- nation denial should result in of may attempted ex- showed Claimant to ment benefits. ploit finding, Client. is no evidence or did, however, fact, in that Claimant take Unemployment statutes must “unjust advantage” of to ad- his own liberally be in favor construed of the claim vantage or benefit. ant. Meierhenry, Red Bird v. Despite variously the stated reasons looking at SDCL 61-6- employment, of termination 14.1, which, any, we must of determine if the only “[e]mployer” the ALJ found termi- preclude enumerated factors would attempting nated Claimant for to socialize receiving compensation. Perhaps the important with a It is to note the client. any most that can be said with to regard only was finding of fact was that Claimant statute, applicable conduct described in that to a “attempting” socialize with client. It orders, obey is that there was a “failure to important Employer’s policy also to note that instructions,” 61-6-14.1(1), rules or SDCL in regard with with a socializing a client on “attempted that Claimant with to socialize a personal was warning. basis was a client.” express prohibition socializing not an with earlier, however, As there indicated a client. order, prohibiting rule or instruction Being of foregoing mindful the the socialization with client. There was employment, termination we of only policy that warned social- such must now decide whether Claimant’s conduct client, izing express an prohibition, constituted work-related misconduct. SDCL order, rule, or None the re- instruction. of 61-6-14.1 defines misconduct would maining apply enumerated factors fact preclude situation. benefits, as: interpretation clarifying In the (1) orders, obey Failure to rules in- or 61-6-14.1, the must consider structions, discharge or failure to determining rule “workre- meaning duties for which an individual em- lated misconduct” as set forth the Wash- ployed; or ington Supreme Depart- Court Nelson v. (2) disregard employer’s Substantial Employment Security, ment 98 Wash.2d employee’s interests or duties and (1982), adopted 655 P.2d our obligations employer; to his or Kotrba, Court in case of Matter (3) 1988), evincing the rule Conduct such willful or wan- N.W.2d where ton disregard employer’s quoted: an interests as was

is found in deliberate violations or disre- order to establish connect- [I]n misconduct gard standards of behavior which employee’s required ed with work as employer right by a must [statute] show employee; or a rea- preponderance of the evidence that (4) employee’s de- negligence Carelessness of such sonable would find the (1) gree equal or recurrence as to manifest nexus the em- conduct: had some (2) work; culpability or wrongful ployee’s intent. resulted in some harm (3) GILBERTSON, interests; (dissenting). employer’s and was Justice (a) conduct which was violative fact respectfully I I af- behavior for be- some code of contracted firm the circuit court. I conclude (b) employee, tween properly Claimant was denied knowledge that intent or done with pursuant to SDCL 61-6-14.1 for em- benefits employer’s interest would suffer. ployee misconduct. The is in error (1) Applying that rule to this fact situa- when it concludes: there was no evidence tion, fairly be said that the conduct finding that the conduct was violative of behavior, and; some nexus with Claimant’s work. did have some code of there was no evidence, however, nor There was no in some evidence Claimant’s conduct results finding by the that Claimant’s conduct Employer’s harm to the interest. resulted in some harm to the established, Claimant vio- [¶ 24.] As will Furthermore, no evi- interest. there was following provisions lated the of SDCL 61-6- that the conduct was viola- dence 14.1: or, tive of code of behavior for that some orders, Failure to rules or in- matter, it was done with intent structions, or failure to knowledge employer’s that the interest would *5 duties for an individual was em- Kotrba, summary, just as in while suffer. ployed; or may conduct have been reckless Claimant’s (2) disregard employer’s Substantial of the very poor judgment, a result of it falls employee’s or of the interests duties adequate grounds disqualifying for short of obligations employer; and to his him from insurance The ALJ committed error as a benefits. (3) evincing Conduct such willful or wan matter of law. disregard employer’s ton of a interests as is found in deliberate violations or The of the trial court is disregard of standards behavior and remanded and the trial court reversed right which the has the to Department’s reverse and remand the shall * employee; of the decision with instructions to allow Claimant’s for claim benefits. ALJ, by As found Claimant’s conduct

clearly “good did not fall within a faith error SABERS, AMUNDSON, judgment” argued as Claimant: Justices, concur. Claimant knew and understood he was August not to socialize with clients. On GILBERTSON, n early evening, he asks the Justices, KONENKAMP, client’s son if his mom is at home. The TAPPE, know, Judge, goes for son not does so Claimant to the Justice, MILLER, there, disqualified. Chief client’s home. She is not so he * 55:01:12:05(4) Regulations wrongful against SD Admin R taken actions another person (1997) are consistent in that authorized they which affect the vicarious or imputed responsi- termination for employment of the state or state other bility employee. cause. Unlike our recent case of Wendell v. S.D. was the violation of these rules that was the 1998 SD Transp., job. basis for Claimant's dismissal from his They regain here Claimant did not to attempt the same in content as SDCL 61- essentially arguing that his termination was not for 6-14.1 the statute which now determines wheth- Thus, cause. from the proceed point er he is com- disqualified unemployment Claimant's termination was for cause. properly pensation. 55:01:12:05(4) SD Admin R states as follows: While be a there distinction may has violated employee any department, grounds of an regulation, division, bureau, or institution poli- for denial of benefits, or order or failed to an oral or written cy, (See White, Appeal directions or other supervisor per- 1983)), here a of SDCL 61-6-14.1 comparison son in authority].] 55:01:12:05(4) 55:01:12:05(23) SD Admin R when SD Admin R states as follows: against to the facts of this case show there are has discriminated anoth- applied er in the course of or has none of relevance. employment inspec- improperly “housing her to him added he was a directing her a note call leaves him, asks tor” which he was not. she calls at a motel. When declines, but he for a She her out drink. As such noted conduct her for a give up. He asks out does not negative consequences also carries following night and she declines drink the Employer as it in a result lawsuit argues that he was again. Claimant Employer. Clearly, against it is be- concerned about client’s basement the Employer’s interests to sued drainage having problems. cause she potential paying judg- off a substantial However, expertise Claimant’s area of is damage govern- ment. It also results in to a weatherization, drainage. Thus, entity’s public image. mental light argument is not credible claim of the that there find- If facts. he was concerned about ing ALJ that Claimant’s conduct could drainage problems, he client’s could Employer’s result in harm to some interest is during her normal business hours. called simply wrong. house, to He not have visit her leave did 20-13-24 [¶ 28.] SDCL makes an unfair directing her a note her call him a discriminatory practice provide adverse motel, or ask her out for drinks. Claim- unequal treatment for public services ant’s the client to such conduct bothered 20-13-1(13) based on sex. Under SDCL reported an extent that she him to Em- public any department pro service includes ployer. good This is not a error in faith gram managed by the State South Dakota. judgment. substantially disre- can provisions Violation these result in a interests, garded damages. suit for “[A]c- 20-13-35.1. tual or constructive notice of harassment and found, “[claimant ALJ knew [¶25.] failure take steps remedial end it and understood that he was not to socialize liability.” *6 standard Much v. by with clients.” As determined Foods, the 167, McCain 170 importance 1991) prohibi- the reasons and Inc., this Co., (citing Hall v. Gus Const. 842 tion 1016 (8th Cir.1988)). are two-fold: tend to vul- 1010, clients F.2d people, “socializing nerable can create Majority unjustified [¶ takes the 29.] liability problems Employer.” position exploitation that no misconduct importance protecting clien- “attempt” occurred as there was an at seeking tele assistance for their homes was socialization because Hentschell turned down Rathbun, rationale, Depart- underscored Abbie Claimant’s offer. Under this Administrator, investigated ment repeatedly every who Claim- Claimant could wom- solicit appli- ant’s State no participated actions and an the violation the long to terminate him cable standard as as his were for misconduct: offers 20-13-1(16) Under SDCL unfair refused. an I policy] do believe that DSS [the discriminatory practice based on in- sex important, and it is due to the nature of attempted adversely cludes “act act” which they the circumstances become services, public affects of the department place. clients in the first logical point This is also from the client’s They many very are cases vulnerable. view, as the client feel denial the They they have low esteem and would be offer negative of socialization will have a apt subject more to be to abuse. request effect their on for weatherization ease, client, In this the Petra Hentschell was rationale, assistance. Under the more vulnerable than most. She a Ger- most, protection those that need the the immigrant familiarity man who had limited those that have turned down the socialization English language. As the record offer, retaliation; but, protected establishes, needy persons rep- these see the those that run no risk of retaliation resentative the State as the who they accepted because they will decide get whether assistance for offer, fully are protected socialization so, their house and if Just what extent. that will never retaliation occur. got point, underscore Hentschell when at Act Claimant left card her home with The Human Relations of SDCL motel, the request remedy. to call him his ch 20-13 is not an exclusive 266 Inc., Publications, 517

Kjerstad v. Ravellette 1999 SD 34 (S.D.1994) was a although there N.W.2d WITTE, individual, Richard B. an Relations Consent decree Human Appellant, Plaintiff intentional parties, allowed claims of distress and invasion infliction of emotional v. jury by em- privacy go to the female ployees against “peeping-Tom” boss and GOLDEY, individually Robert C. employer. the facts in corporate While Goldey, P.A., Robert C. d/b/a Kjerstad admittedly outrageous more Appellee. Defendant and us, potential than those now before recovery punitive dam- compensatory No. 20417. ages against employer for sexual mis- certainly give deeds of an Supreme Court of South Dakota. justified prohibit cause to 2, Argued socialization with clients which could Dec. lead sexual solicitation and conduct 17, Decided March employees. Lenz, In Rehm v. 1996 SD negli- was sued for

N.W.2d

gence, fiduciary duty, breach of fraud and

deceit, punitive dam- breach contract and resulting

ages for sexual advances and a

relationship purportedly by one of initiated

its client. counselors with a See also Rich- Lenz, ards v. N.W.2d Montana, recently Most in Wiest v.

1998 SD we reversed a

grant summary judgment and held that

tort claims based on sexual harassment are

appropriate jury. for resolution respectfully disagree In conclusion I *7 Majority.

with the rationale of the

was admitted evidence Claimant of mis-

conduct that inis clear violation of SDCL 61- 6-14.1(1), as found the ALJ

and affirmed the circuit court. There was

harm from Claimant’s conduct in that re- damage

sulted in interests in potential litigation pub-

the nature of and its image

lic as a reliable source of assistance to

citizens in need. The conduct also created a

chilling effect on those less fortunate citizens petition government this State who

help everyday to meet the basic needs of

survival, housing such as it to price-tag.

come without such a dubious KONENKAMP, Justice, joins