Mendenhall v. Swanson , 2017 S.D. 2 ( 2017 )

#27774-r-DG
2017 S.D. 2
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
KEITH MENDENHALL, Plaintiff and Appellant,
v.
LISA SWANSON, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
DAY COUNTY, SOUTH DAKOTA
****
THE HONORABLE JON S. FLEMMER
Judge
****
JONATHAN K. VAN PATTEN
Vermillion, South Dakota Attorney for plaintiff
and appellant.
GREG L. PETERSON
JUSTIN M. SCOTT of
Bantz, Gosch & Cremer, LLC
Aberdeen, South Dakota Attorneys for defendant
and appellee.
****
CONSIDERED ON BRIEFS ON
NOVEMBER 7, 2016
OPINION FILED 01/04/17
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GILBERTSON, Chief Justice
[¶1.] Keith Mendenhall appeals a jury verdict awarding $211,710 to Lisa
Swanson, his former wife, in compensatory and punitive damages for intentional
infliction of emotional distress and alienation of affection. Keith argues the circuit
court erred by admitting 14 exhibits consisting of court documents from prior
proceedings. We reverse and remand.
Facts and Procedural History
[¶2.] Lisa married her first husband, Steve Swanson, in 1992. Lisa and
Steve had four children together. In 2005, Steve died in a ranching accident. Keith
and Steve were close friends, and following Steve’s passing, Keith helped Lisa
continue to operate the Swanson ranch. Keith and Lisa grew closer during this
time and married approximately one year after Steve’s death. They had one child
together. Lisa and Keith separated in December 2010 and divorced in December
2011.
[¶3.] Before the divorce was finalized, the relationship between Lisa and
Keith deteriorated significantly. Shortly after the separation, Lisa sought a
protection order against Keith. On March 3, 2011, Keith stipulated to the entry of a
restraining order to run for five years, which was entered by Judge Jon Flemmer.
Six months later, on September 8, 2011, Lisa was granted a one-year protection
order against Keith. On March 18, 2013, Judge Scott Myren extended the
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protection order until September 9, 2016. 1 Judge Myren issued findings of fact
detailing Keith’s conduct toward Lisa.
[¶4.] Meanwhile, the parties also clashed over the custody of their child.
Judge Robert Timm awarded primary physical custody to Lisa on August 22, 2012.
One week later, on August 29, Keith filed a motion for a change in custody. He also
requested the circuit court order Lisa to submit to psychological evaluation. Judge
David Gienapp denied both requests on February 1, 2013, with a letter decision. On
May 28, 2014, in another letter decision, Judge Gienapp held Keith in contempt for
failing to abide by the court’s child-visitation arrangement.
[¶5.] Keith initiated the present action on October 19, 2012. He brought a
claim for slander against Lisa, alleging she had falsely reported to a law-
enforcement officer that Keith had sexually abused her daughter. Lisa
counterclaimed for intentional infliction of emotional distress, invasion of privacy,
slander, and alienation of her daughter’s affection. Since that time, Keith has been
held in contempt two additional times for failing to comply with an order for
discovery and an order to pay costs.
[¶6.] Before trial, Lisa made a motion for judgment as a matter of law on
Keith’s slander claim, which was granted. The remaining claims proceeded to trial
January 19–22, 2016. Leading up to the trial, Lisa persuaded the circuit court to
admit 14 exhibits consisting of documents from the various, prior proceedings
discussed above. These documents included Judge Gienapp’s two letter decisions
1. An order was entered on August 27, 2012, that extended the original one-year
order until a hearing could be held on Lisa’s request to extend the protection
order.
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and Judge Myren’s findings of fact and conclusions of law. At trial, the court
received those documents into evidence and issued Jury Instruction 38, which
stated:
I have taken judicial notice of the facts contained in the
following documents, which have been marked and admitted as
exhibits in this matter, which you will be able to take into your
jury deliberations:
Letter Decision, Judge Gienapp 2-1-13 re custody and Keith’s
request for mental health evaluation of Lisa, 10-94
Letter Decision, Judge Gienapp 5-8-14 re contempt and
visitation, 10-94
Findings of Fact and Conclusions of Law, 10-1094, 5-28-14
Order 10-1094 re contempt and visitation, 5-28-14
Stipulation for Restraining Order, Roberts Co., Civ. 11-38, 3-
3-11
Order of Protection, Roberts Co. TPO 11-0127, 9-8-11
Order of Protection, 11-0127, 3-25-13 (modification)
Bench Ruling 1-10-13 on Contempt, Restraining Order
viol’ns
Findings of Fact and Conclusions of Law 11-38, 3-18-13
Modification of Restraining Order 11-38, 3-18-13
Findings of Fact and Conclusions of Law 11-38, 5-29-14
Second Modification of Restraining Order 11-38, 5-29-14
Order re Contempt, Day County Civ. 13-34 11-10-15
State v. Mendenhall Judgment of Conviction CR 98-0236
You must accept as conclusive any fact judicially noticed.
You should consider these judicially noticed facts along with
other testimony and exhibits introduced during the trial in
deciding any of the issues before you.
The jury subsequently found in favor of Lisa on each of her counterclaims except
slander and awarded compensatory damages in the amount of $11,710 for
intentional infliction of emotional distress and $25,000 for alienation of affection.
The jury also awarded Lisa $175,000 in punitive damages.
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[¶7.] Keith appeals, raising one issue: Whether the circuit court erred by
taking judicial notice of the facts contained in the documentation of prior
proceedings. 2
Analysis and Decision
[¶8.] Keith primarily argues that it is improper for the circuit court to admit
the 14 exhibits listed in Instruction 38. According to Keith, the circuit court
improperly took judicial notice of the facts in those exhibits. In contrast, Lisa
argues that the instruction was justified under principles of issue preclusion. She
further argues that even if those documents were improperly noticed, she presented
other evidence and witness testimony sufficient to justify the jury’s verdict.
[¶9.] “Judicial notice is merely a substitute for the conventional method of
taking evidence to establish facts.” Grand Opera Co. v. Twentieth Century-Fox Film
Corp., 235 F.2d 303, 307 (7th Cir. 1956). The doctrine “governs judicial notice of an
adjudicative fact only, not a legislative fact.” SDCL 19-19-201(a). “Adjudicative
facts are those which relate to the immediate parties involved—the who, what,
when, where[,] and why as between the parties.” In re Dorsey & Whitney Tr. Co.,
2001 S.D. 35, ¶ 19, 623 N.W.2d 468, 474 (citing Fed. R. Evid. 201 advisory comm.’s
note to subdiv. (a)). Under South Dakota’s rules of evidence, a “court may judicially
notice [an adjudicative] fact that is not subject to reasonable dispute because it: (1)
Is generally known within the trial court’s territorial jurisdiction; or (2) Can be
accurately and readily determined from sources whose accuracy cannot reasonably
2. Initially, Keith also appealed the circuit court’s dismissal of his slander
claim. The parties subsequently submitted a joint motion to withdraw this
issue on appeal, which this Court granted.
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be questioned.” SDCL 19-19-201(b). Generally speaking, a court may not judicially
notice a fact simply because it has been previously included in the findings of fact of
a prior proceeding.
While judicial findings of fact may be more reliable than other
facts found in the file, this does not make them indisputable;
they were disputed at trial and if the case is overturned on
appeal, they will be disputed again. If a fact found in one case
could be judicially noticed as true, then the doctrine of res
judicata would be virtually superfluous because a party in one
case could not dispute any fact that was found true in another
case, whether or not the party had any opportunity to litigate
that fact. Be that as it may, most courts agree that Rule 201
does not permit courts to judicially notice the truth of findings of
fact.
21B Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5106.4
(2d ed.) (footnotes omitted), Westlaw (database updated April 2016); accord In re
Omnicare, Inc. Sec. Litig., 769 F.3d 455, 468 (6th Cir. 2014); Taylor v. Charter Med.
Corp., 162 F.3d 827, 829-30 (5th Cir. 1998); United States v. Jones, 29 F.3d 1549,
1553 (11th Cir. 1994); Liberty Mut. Ins. v. Rotches Pork Packers, Inc., 969 F.2d 1384,
1388 (2d Cir. 1992); Holloway v. Lockhart, 813 F.2d 874, 878-79 (8th Cir. 1987).
[¶10.] Even so, principles of issue preclusion might apply to prior factual
findings. “Under the judicially-developed doctrine of [issue preclusion], once a court
has decided an issue of fact or law necessary to its judgment, that decision is
conclusive in a subsequent suit based on a different cause of action involving a
party to the prior litigation.” United States v. Mendoza, 464 U.S. 154, 158,
104 S. Ct. 568, 571, 78 L. Ed. 2d 379 (1984). This doctrine “relieve[s] parties of the
cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by
preventing inconsistent decisions, encourage[s] reliance on adjudication.” Allen v.
McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 415, 66 L. Ed. 2d 308 (1980). A party may
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invoke issue preclusion either offensively or defensively. See Melbourn v. Benham,
292 N.W.2d 335, 339 n.3 (S.D. 1980) (citing Blonder-Tongue Labs., Inc. v. Univ. of
Ill. Found., 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971)). However, “there
must have been ‘a full and fair opportunity to litigate the issues in the prior
proceeding.’” Am. Family Ins. Grp. v. Robnik, 2010 S.D. 69, ¶ 20, 787 N.W.2d 768,
775 (quoting People ex rel. L.S., 2006 S.D. 76, ¶ 22, 721 N.W.2d 83, 90).
[¶11.] It is unclear whether the circuit court admitted the 14 exhibits listed
above, see supra ¶ 6, on the basis of judicial notice, issue preclusion, or some
combination of the two. Throughout the various submissions and hearings, the
court and the parties conflated these two concepts. Lisa initially asked the court to
apply the doctrine of issue preclusion to Exhibits 9, 10, and 11. On the basis of
those exhibits, she asked the court to grant summary judgment on her
counterclaims for intentional infliction of emotional distress and alienation of
affection. Yet, Lisa later submitted a motion titled “Request for Judicial Notice” in
reference to all 14 exhibits. In a subsequent written order, the court granted the
motion, stating: “Defendant has requested that the [c]ourt take judicial notice of
various pleadings from the parties’ divorce, restraining order, and protection order
proceedings. These pleadings are matters of public record and it is appropriate for
the [c]ourt to take judicial notice of the same.” Similarly, at a pretrial hearing, the
court noted: “I think the [c]ourt has previously ruled that judicial notice would be
taken of those documents.” However, the court went on to explain: “I believe that
was the intent in asking for the judicial notice so that the documents would be
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entered into evidence and would be part of the evidence without the need to provide
testimony as to what led up to those.”
[¶12.] Regardless of whether the court relied on judicial notice or issue
preclusion, it failed to conduct the appropriate analysis in either case. As explained
above, the doctrines of judicial notice and issue preclusion each have specific
prerequisites to application. See supra ¶¶ 9-10. An analysis of these elements is
not apparent in the record in regard to any of the 14 exhibits, let alone to each of
the facts contained in those exhibits. 3 In order to treat those facts as conclusively
established or proven, the court should have analyzed them under SDCL 19-19-201 4
or principles of issue preclusion. The court’s failure to do so was error.
[¶13.] Even so, Lisa contends that any error was harmless because she
introduced sufficient evidence to sustain the jury’s verdict independent of the
14 exhibits. The circuit court’s error is subject to the harmless-error rule. Under
that rule, “[t]he court at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights of the parties.”
SDCL 15-6-61. In a civil action, “if one cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole,
3. Exhibit 10 alone had 49 separate findings of fact.
4. Even if some of these facts are judicially noticeable, “[t]he right to take
judicial notice of some thing, or occurrence, or record, or other fact which may
be considered properly by the court or jury, does not mean that any such
judicially noticeable matter is [a]dmissible in evidence.” Winekoff v. Pospisil,
181 N.W.2d 897, 899-900 (Mich. 1970). While technically not “evidence,” a
fact judicially noticed must be relevant and may not violate exclusionary
rules of evidence. 21B Graham, supra ¶ 9, § 5104; see also United States v.
Watson, 695 F.3d 159, 165-66 (1st Cir. 2012).
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that the judgment was not substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected.” Kotteakos v. United States,
328 U.S. 750, 765, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946); see also Voorhees
Cattle Co. v. Dak. Feeding Co., 2015 S.D. 68, ¶ 17, 868 N.W.2d 399, 408 (“Error is
prejudicial if it ‘most likely has had some effect on the verdict and harmed the
substantial rights of the moving party.’” (quoting Schoon v. Looby, 2003 S.D. 123,
¶ 18, 670 N.W.2d 885, 891)); 11 Charles Alan Wright et al., Federal Practice &
Procedure § 2883 (3d ed.), Westlaw (database updated April 2016). Thus, contrary
to Lisa’s argument, “[t]he [harmless-error] inquiry cannot be merely whether there
was enough to support the result, apart from the phase affected by the error. It is
rather, even so, whether the error itself had substantial influence.” Kotteakos,
328 U.S. at 765, 66 S. Ct. at 1248.
[¶14.] We think the circuit court’s error likely did have a substantial
influence on the jury’s verdict. The 14 exhibits were made available to the jury
during its deliberations. The court informed the jury that it “should consider [the]
judicially noticed facts [in the 14 exhibits] along with other testimony and exhibits
introduced during the trial in deciding any of the issues before you.” The court also
instructed the jury that it was required to “accept as conclusive any fact judicially
noticed.” Additionally, during closing argument, Lisa’s counsel elaborated on the
meaning of Instruction 38:
We also made your job a little easier by asking Judge Flemmer
to take judicial notice of the documents that he identified for you
earlier. . . . Judge Flemmer instructed you in 38 that you must
accept as conclusive any fact judicially noticed. So you can reject
all of Keith’s testimony and you can accept as conclusive all of
the Findings of Fact that you’ll see in those documents that are
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identified clearly for you in Instruction #38. Those documents
were prepared after judges heard sworn testimony and received
exhibits just like you folks have seen and heard here this week.
They have been finally and irreversibly established. Keith can
argue and testify until he’s blue in the face trying to convince you
that the judges had it wrong. But . . . you do not have the option
to disregard or disagree with the facts in those exhibits. When
you get back in your juryroom go ahead and take time to look at
both the [c]ourt’s instructions and those documents we’ve given
you.
(Emphasis added.) The court’s instructions, as well as Lisa’s counsel’s argument to
the jury, were designed to ensure the 14 exhibits had a substantial influence on the
jury’s decision. We presume that the jury followed the court’s instructions. See
Karst v. Shur-Co., 2016 S.D. 35, ¶ 33, 878 N.W.2d 604, 618. Therefore, we conclude
the circuit court’s failure to properly admit the 14 exhibits by either judicial notice
or issue preclusion was prejudicial.
Conclusion
[¶15.] Factual findings from previous proceedings are not per se noticeable
under Rule 201. In order to justify Instruction 38, the court was required to analyze
the facts contained in the 14 exhibits under principles of judicial notice or issue
preclusion. The court’s failure to do so was error. Considering the court’s jury
instructions and opposing counsel’s closing argument, we think the court’s error
likely had a substantial influence on the jury’s verdict.
[¶16.] We reverse and remand for a new trial.
[¶17.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
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