Smizer v. Drey , 873 N.W.2d 697 ( 2016 )

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2016 S.D. 3IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
DOROTHY SMIZER, Individually and
as Personal Representative of the
Estate of HARLAN SMIZER, deceased, Plaintiff and Appellant,
v.
CHRISTINA DREY, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
GREGORY COUNTY, SOUTH DAKOTA
****
THE HONORABLE KATHLEEN F. TRANDAHL
Judge
****
MICHAEL D. BORNITZ
ROBERT D. TRZYNKA of
Cutler Law Firm, LLP
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.
RYLAND DEINERT
TIMOTHY A. CLAUSEN of
Klass Law Firm, LLP
Sioux City, Iowa Attorneys for defendant
and appellee.
****
ARGUED ON
OCTOBER 7, 2015
OPINION FILED 01/06/16
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WILBUR, Justice
[¶1.] Dorothy Smizer, in her individual capacity and as personal
representative of the estate of Harlan Smizer, appeals the circuit court’s decision to
impose sanctions under SDCL 15-6-11(c). The circuit court awarded Christina Drey
attorney’s fees as sanctions after the court concluded that the Smizers did not
conduct a reasonable investigation in law or fact to support their claim for punitive
damages against Christina. The court also imposed sanctions because it found that
the Smizers improperly sought punitive damages to gain leverage toward
settlement of their negligence claim against Christina. We affirm.
Background
[¶2.] On July 25, 2010, Dorothy and Harlan Smizer were traveling to church
with their daughter and granddaughter when a vehicle driven by Christina collided
with their vehicle at the intersection of 347th Avenue and 294th Street in Gregory
County, South Dakota. Christina was traveling west on 294th Street, and the
Smizers were traveling south on 347th Avenue. A yield sign on 294th Street
controls the intersection, and the speed limit is 65 mph. Christina later explained
that prior to the accident she was traveling 45 mph and that she slowed to 35 mph
before the intersection. She looked for oncoming traffic and drove through the
intersection. But she explained that a cornfield obstructed her view of traffic
traveling south. She did not see the Smizers’ vehicle until it was too late. Christina
slammed on her brakes to attempt to avoid the accident, but could not stop.
Christina’s vehicle struck the Smizers’ vehicle behind the driver’s-side door. The
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Smizers were seriously injured. Christina was cited for and admitted to a failure to
yield in violation of SDCL 32-29-3.
[¶3.] The Smizers brought suit against Christina in November 2012. They
alleged that Christina was negligent and that her failure to yield at the intersection
constituted negligence per se. The Smizers sought to recover compensatory and
punitive damages. To support their claim for punitive damages, the Smizers
alleged that Christina “regularly fails to yield at this intersection, in willful
violation of SDCL § 32-29-3 Failure to Yield to Traffic at Yield Sign.” And they
asserted that Christina “engaged in extreme and outrageous conduct in operating
her motor vehicle in conscious disregard of the traffic laws of this State.” The
Smizers alleged that Christina’s “actions were willful, wanton, and reckless,
entitling [them] to punitive damages in an amount to be determined by the trier of
fact.” They also requested attorney’s fees based on SDCL 23A-28-6. That statute
provides that “[i]f the victim is not satisfied with the approved or modified plan of
restitution, the victim’s exclusive remedy is a civil action against the defendant,
which, if successful, may include attorney’s fees.”
[¶4.] Christina answered and denied liability. She asserted that the
Smizers had no legal basis or authority to seek punitive damages or attorney’s fees.
Christina averred that the Smizers brought their claim for punitive damages solely
to “harass and intimidate her[.]” Christina served upon the Smizers (but did not
file) a motion for an award of sanctions. Counsel for Christina later explained that
he did not file the motion because SDCL 15-6-11(c)(1)(a) requires that a motion for
sanctions “shall not be filed with or presented to the court unless, within 21 days
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after service of the motion (or such other period as the court may prescribe), the
challenged . . . claim . . . is not withdrawn or appropriately corrected.” The parties
held a teleconference, after which the Smizers amended their complaint and
removed their claim for attorney’s fees under SDCL 23A-28-6. The Smizers
continued to seek punitive damages. (Harlan passed away of natural causes in
February 2014, and his claims were asserted on his behalf by his estate.)
[¶5.] During discovery, Christina asked the Smizers to identify the evidence
to support their claim for punitive damages. The Smizers asserted that they had
information and belief that Christina had a habit of failing to yield at that
intersection. More specifically, during her deposition, Dorothy testified that Karen
Klein and Brad Skalla had knowledge of Christina’s previous failures to yield at
that intersection. Yet Dorothy could not say if Karen specifically said she saw
Christina or if she saw Christina’s sister. Christina later obtained an affidavit from
Brad, who attested that he had no memory of Christina ever failing to yield at that
intersection. Brad also attested that he had no memory of telling Dorothy or
Harlan that he observed Christina fail to yield at that intersection.
[¶6.] After the parties completed discovery, the Smizers continued to seek
punitive damages against Christina. In a letter to Christina’s counsel in December
2013, the Smizers claimed that “there is a reasonable likelihood we will be able to
obtain a verdict in excess of the policy limits and an award of punitive damages.”
Unable to convince the Smizers to abandon their claim for punitive damages,
Christina moved the circuit court for partial summary judgment on the issue of
punitive damages and for sanctions under SDCL 15-6-11(c). Christina asserted that
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the Smizers failed to conduct a reasonable investigation of their claim and merely
recited the applicable legal terms “willful and wanton” without any evidence that
Christina’s conduct was anything more than simple negligence. Christina further
claimed that the Smizers were using their request for punitive damages to harass
her and gain leverage in settlement negotiations.
[¶7.] The Smizers responded with a cross-motion for partial summary
judgment on the issue of punitive damages and, in the alternative, moved the court
to let the jury decide the issue of punitive damages. They claimed that punitive
damages were warranted as a matter of law because Christina knew she had an
obligation to yield, knew her view was obstructed, failed to slow to a speed of 15
mph, and drove through the intersection while looking ahead. Also, “Kiley and
Karen Klein might have witnessed her previously fail to yield at the intersection of
294th Street and 347th Avenue.” According to the Smizers, Christina’s actions
disregarded their rights. The Smizers also filed a separate motion for partial
summary judgment on the issue of Christina’s negligence.
[¶8.] After a hearing on the parties’ motions in February 2014, the circuit
court issued a memorandum decision. It granted the Smizers’ motion for partial
summary judgment on the issue of Christina’s negligence. It granted Christina’s
motion for partial summary judgment on the issue of punitive damages and
dismissed that claim. The court concluded that the Smizers failed to present any
evidence to support a claim for punitive damages beyond a violation of a safety
statute. The court also granted Christina’s motion for sanctions under SDCL 15-6-
11(c). It found that “[i]t is clear from the Smizers’ conduct that their purpose in
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bringing a claim for punitive damages . . . is to harass and attempt to leverage a
settlement.” It concerned the court that counsel continued to assert a claim for
punitive damages after discovery was completed. In the court’s view, the “Smizers
and their attorneys did not conduct any reasonable investigation in fact or law in
bringing their claim for punitive damages,” and “[t]here is no evidence whatsoever
that supports a claim for punitive damages.”
[¶9.] The court ordered the Smizers to “pay the attorneys fees to counsel for
[Christina] for the time and expense for defending against the punitive damages
claim after discovery was completed, including preparing the motions and briefs on
the issue of punitive damages, and arguing the motion to the court.” The Smizers
appeal and raise the following issues for our review:
1. The court abused its discretion when it found that the
Smizers had neither legal nor factual support for their
claim of punitive damages against Christina and granted
Rule 11 sanctions.
2. The court abused its discretion when it improperly made
inferences from the evidence in Christina’s favor, required
the Smizers to prove that Christina intended to harm
them, and allowed Christina to rely on an affidavit in
contradiction to her deposition testimony.
Standard of Review
[¶10.] The Smizers claim that this Court’s standard of review “appears
inconsistent.” On the one hand, SDCL 15-6-11(e) provides that “[t]he Supreme
Court shall consider all appeals pursuant to §§ 15-6-11(a) through 15-6-11(d)
without any presumption of the correctness of the trial court’s findings of fact and
conclusions of law.” On the other hand, our case law specifically directs that an
appeal under Rule 11 is reviewed for an abuse of discretion. Hobart v. Ferebee, 2009
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S.D. 101, ¶ 10, 776 N.W.2d 67, 71; Pioneer Bank & Tr. v. Reynick, 2009 S.D. 3, ¶ 13,
760 N.W.2d 139, 143; Hahne v. Burr, 2005 S.D. 108, ¶ 22, 705 N.W.2d 867, 874;
Prunty Constr., Inc. v. City of Canistota, 2004 S.D. 78, ¶ 28, 682 N.W.2d 749, 761;
Anderson v. Prod. Credit Ass’n, 482 N.W.2d 642, 645 (S.D. 1992). We take this
opportunity to clarify our standard of review.
[¶11.] In 1990, the United States Supreme Court specifically examined the
issue of an appropriate standard of review when a court imposes Rule 11 sanctions.
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403-04, 110 S. Ct. 2447, 2460, 110 L.
Ed. 2d 359 (1990). We note that the federal rule does not contain language similar
to SDCL 15-6-11(e)—that this Court is not to presume “the correctness of the trial
court’s findings of fact and conclusions of law.” Yet the reasoning in Cooter & Gell
is helpful because there is no decisive distinction between the policy considerations
implicated by our rule and the federal rule. See Cooter & Gell, 496 U.S. at 404, 110
S. Ct. at 2460 (goal is “specific and general deterrence”); Anderson, 482 N.W.2d at
645 (purpose of the rule is to deter abuse). And nothing in SDCL 15-6-11(e) imposes
a specific standard of review or mandates that this Court reweigh the evidence and
reconsider the facts already considered and weighed by the circuit court.
[¶12.] In deciding the appropriate standard of review under the federal rule,
the United States Supreme Court recognized that a federal “court’s ruling that a
litigant’s position is factually well grounded and legally tenable for Rule 11
purposes is similarly fact specific.” Cooter & Gell, 496 U.S. at 403, 110 S. Ct. at
2460. Likewise in South Dakota, the decision to impose Rule 11 sanctions under
SDCL 15-6-11(b) involves multiple factual and legal considerations. The circuit
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court must examine factual questions related to the attorney or unrepresented
party’s representations to the court. SDCL 15-6-11(b). Legal issues are implicated
when the court considers whether “[t]he claims, defenses, and other legal
contentions therein are warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the establishment of new
law[.]” SDCL 15-6-11(b)(2). And if the circuit court determines a violation occurred,
it may exercise its discretion and “impose an appropriate sanction upon the
attorneys, law firms, or parties that have violated § 15-6-11(b) or are responsible for
the violation.” SDCL 15-6-11(c).
[¶13.] As the Supreme Court recognized, to decide “whether a complaint was
supported by fact and law ‘to the best of the signer’s knowledge, information, and
belief,’ a court must make some assessment of the signer’s credibility.” Cooter &
Gell, 496 U.S. at 402, 110 S. Ct. at 2459. The “court must consider all the
circumstances of a case. An inquiry that is unreasonable when an attorney has
months to prepare a complaint may be reasonable when he has only a few days
before the statute of limitations runs.” Id. at 401-02, 110 S. Ct. at 2459. Indeed,
“[f]amiliar with the issues and litigants, the district court is better situated than the
court of appeals to marshal the pertinent facts and apply the fact-dependent legal
standard mandated by Rule 11.” Id. at 402, 110 S. Ct. at 2459.
[¶14.] In light of these considerations and the language of SDCL 15-6-11, we
continue to adhere to our abuse of discretion standard of review. “An abuse of
discretion is a discretion exercised to an end or purpose not justified by, and clearly
against, reason and evidence.” Pioneer Bank & Tr., 2009 S.D. 3, ¶ 13, 760 N.W.2d
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at 143. An abuse of discretion also occurs when the court bases “its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Cooter & Gell, 496 U.S. at 405, 110 S. Ct. at 2461.
Analysis
[¶15.] The Smizers contend that the circuit court abused its discretion when
it imposed sanctions under SDCL 15-6-11(c) because they had at least some rational
basis to support their claim for punitive damages. In particular, the Smizers assert
that the facts, viewed in a light most favorable to them, show Christina “acted
intentionally or recklessly” when she drove through the intersection at 35 mph with
an obscured view of oncoming traffic, had previously avoided a collision with
another vehicle at that intersection, and “showe[d] a criminal indifference to her
civil obligations” when she pleaded guilty to failure to yield. In the Smizers’ view, a
jury could reasonably conclude that Christina “had no intention of yielding or
recklessly failed to yield to oncoming traffic on the morning of the collision.”
[¶16.] Christina, on the other hand, insists that the Smizers merely recite the
litany of legal terms relevant to a claim for punitive damages and provide no factual
support for their claim that she intentionally failed to yield at the intersection on
the day of the collision. She notes that she was not intoxicated, was not a distracted
driver, and has never before been cited for failure to yield. She contends that the
collision was nothing “other than a simple motor vehicle accident involving general
negligence.” She also avers that the Smizers asserted their claim for punitive
damages to harass her and leverage a settlement.
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[¶17.] SDCL 15-6-11(b) imposes a duty on an attorney “to conduct a
‘reasonable inquiry’ into the facts and law prior to commencing any action.”
Anderson, 482 N.W.2d at 645. The allegations and contentions asserted must “have
evidentiary support or, if specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further investigation or discovery[.]”
SDCL 15-6-11(b)(3). By presenting a claim to the court, the attorney is certifying
that the claim is “warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of new
law[.]” SDCL 15-6-11(b)(3).
[¶18.] We have said that the purpose of sanctions under SDCL 15-6-11 is to
deter abuse by parties and counsel. Anderson, 482 N.W.2d at 645 (quoting Rodgers
v. Lincoln Towing Serv., Inc., 771 F.2d 194, 205 (7th Cir. 1985)). But evidence of
bad faith is not required under because the aim is “to reduce the reluctance of
courts to impose sanctions by emphasizing the responsibilities of the attorney and
reenforcing those obligations by the imposition of sanctions.” Anderson, 482 N.W.2d
at 645 (quoting Rodgers, 771 F.2d at 205). When imposing sanctions, SDCL 15-6-
11(c)(3) requires that the court “describe the conduct determined to constitute a
violation of this rule and explain the basis for the sanction imposed.” We have said
that this requirement “facilitate[s] effective appellate review.” Pioneer Bank & Tr.,
2009 S.D. 3, ¶ 9, 760 N.W.2d at 142 (quoting 5A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1337.3 (3d ed. 2008)).
[¶19.] Here, the court described the conduct that constituted a violation of
SDCL 15-6-11. It explained that “[i]t is clear from the Smizers’ conduct that their
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purpose in bringing a claim for punitive damages (just like their earlier attempt to
claim attorney fees under the criminal restitution statutes and the South Dakota
commercial driver’s license statutes even though Drey doesn’t have a CDL) is to
harass and attempt to leverage a settlement.” In the court’s view, “[t]here is no
evidence whatsoever that supports a claim of punitive damages.” According to the
court, the Smizers failed to meet their duty to conduct a reasonable inquiry under
the circumstances prior to asserting their claim. It noted that “the Smizers’
‘smoking gun’ witness, Brad Skalla, testified under oath that he disagrees with
Dorothy Smizer’s sworn testimony.” And Christina proved that the Smizers’
responses to certain requests for admissions “were untrue.” It particularly
concerned the court, not that counsel for the Smizers relied on his client’s
representations, but “that they continued with the claim for punitive damages after
discovery was completed.” The court concluded that the Smizers should have
dismissed their claim for punitive damages “at the time their claim for attorney fees
was dismissed.”
[¶20.] Punitive damages are warranted “where the defendant has been guilty
of oppression, fraud, or malice, actual or presumed . . . committed intentionally or
by willful and wanton misconduct, in disregard of humanity[.]” SDCL 21-3-2.
“Malice is an essential element of a claim for punitive damages.” Kjerstad v.
Ravellette Publ’ns, Inc., 517 N.W.2d 419, 425 (S.D. 1994). Malice can be actual or
presumed. Id. Yet, it is not presumed simply from doing the unlawful or injurious
act. Presumed malice is inferred from certain acts. Isaac v. State Farm Mut. Auto.
Ins. Co., 522 N.W.2d 752, 761 (S.D. 1994). The implication is “that the act
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complained of was conceived in the spirit of mischief or of criminal indifference to
civil obligations.” Id. (quoting Dahl v. Sittner, 474 N.W.2d 897, 900 (S.D. 1991)).
[¶21.] From our review of the evidence, the circuit court did not abuse its
discretion when it held that the Smizers failed to conduct a reasonable investigation
to support their claim for punitive damages. The Smizers identify no evidence that
Christina’s failure to yield at the intersection “was conceived in the spirit of
mischief or of criminal indifference to civil obligations.” See id. Nor does this case
“involve ingenuity in advocacy or an attempt to develop the law.” See Johnson v.
Miller, 2012 S.D. 61, ¶ 52, 818 N.W.2d 804, 817 (Zinter, J., dissenting).
[¶22.] Nonetheless, the Smizers argue that the circuit court ignored disputed
evidence and failed to view the evidence in a light most favorable to them.
Specifically, they contend that the court improperly failed to consider that Christina
made a statement that she was looking straight ahead when she drove through the
intersection and that she failed to slow to 15 mph, despite having an obstructed
view of oncoming traffic. The Smizers highlight that Christina admitted to
violating her statutory duty to yield at the intersection and knew it would be more
difficult for her to stop because of the gravel road. This evidence, viewed in a light
most favorable to the Smizers and all reasonable inferences that could be drawn
from this evidence, does not create a rational basis to assert a claim for punitive
damages. See Gabriel v. Bauman, 2014 S.D. 30, ¶ 16, 847 N.W.2d 537, 543 (“The
conduct must be more than mere mistake, inadvertence, or inattention.”).
[¶23.] The court also did not abuse its discretion when it found that the
Smizers had no basis in law or fact to assert their claim for punitive damages.
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Although counsel for the Smizers asserted that—in originally bringing the claim for
punitive damages—he relied on his client’s representation that Christina had a
history of failing to yield at that intersection, it became clear during discovery that
no witness would actually be able to testify to that fact. Indeed, after discovery, the
Smizers only alleged that a witness might say she saw Christina nearly miss an
accident at the intersection on a previous occasion. Yet that speculative assertion
does not lead to the reasonable inference that a witness observed Christina
previously fail to yield at that intersection or that Christina was a driver involved
in a near miss at that intersection. See Andrushchenko v. Silchuk, 2008 S.D. 8, ¶ 8,
744 N.W.2d 850, 854 (evidentiary basis must be supported by more than
unsupported conclusions and speculative statements). Nor does merely quoting the
legal terms relevant to a claim of punitive damages equate to a legitimate attempt
to establish a new theory of law. See Hartman v. Wood, 436 N.W.2d 854, 857 (S.D.
1989). In fact, no case cited by the Smizers supports their claim that Christina
acted with the requisite intentional or reckless conduct sufficient to implicate
punitive damages. See Dame v. Estes, 101 So. 2d 644 (Miss. 1958) (evidence that
driver either ignored or wholly failed to see the stop sign and made no effort to stop
at the intersection or check the speed of her vehicle); Eliason v. Wallace, 680 P.2d
573 (Mont. 1984) (court did not indicate findings to support the claim, just the
conclusion that the claim was supported); Austin v. Specialty Transp. Servs., Inc.,
594 S.E.2d 867 (S.C. 2004) (driver did not stop at the stop sign); Fairchild v. S.C.
DOT, 683 S.E.2d 818 (S.C. Ct. App. 2009) (under state law, when there is
negligence per se, punitive damages may be presented to the jury).
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[¶24.] The circuit court also did not abuse its discretion when it imposed
sanctions because it found that the Smizers brought their claim for an improper
purpose. According to the court, “[i]t is clear” the Smizers used their claim to
attempt to leverage a settlement and to harass Christina. See Probasco v. Ford
Motor Co., 182 F. Supp. 2d 701, 705 (C.D. Ill. 2002) (it is improper to use a claim for
punitive damage as leverage). In the court’s view, there was no evidence
“whatsoever” to support a claim for punitive damages, and the Smizers should have
dismissed the claim when it dismissed their claim for attorney’s fees.
[¶25.] Christina moves this Court for appellate attorney’s fees under SDCL
15-26A-87.3 and has included a verified statement of legal services to support her
motion. An award of reasonable appellate attorney’s fees is mandated under SDCL
15-6-11(e) “to the successful party on appeal.” Id. Christina is the successful party
on appeal. We award Christina appellate attorney’s fees and costs totaling
$8,752.50.
[¶26.] Affirmed.
[¶27.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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