Fix v. First State Bank of Roscoe , 2011 S.D. LEXIS 137 ( 2011 )

#25898, #25911-aff in pt, rev in pt & rem-JKM
2011 S.D. 80IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
RITA FIX, Plaintiff and Appellant,
and
JOHN S. LOVALD, Plaintiff,
v.
FIRST STATE BANK OF ROSCOE,
A SOUTH DAKOTA CORPORATION,
ROSCOE COMMUNITY BANKSHARES, INC.,
A SOUTH DAKOTA CORPORATION Defendants and Appellees,
and
JAMES and PAMELA BAER
and VAUGHN BECK, Defendants.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
FAULK COUNTY, SOUTH DAKOTA
****
THE HONORABLE JAMES W. ANDERSON
Judge
****
LEE SCHOENBECK
Watertown, South Dakota Attorney for plaintiff
and appellant.
ROGER W. DAMGAARD
SANDER J. MOREHEAD of
Woods, Fuller, Shultz & Smith PC
Sioux Falls, South Dakota Attorneys for defendants
and appellees.
****
ARGUED AUGUST 23, 2011
OPINION FILED 11/30/11
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MEIERHENRY, Retired Justice
[¶1.] This appeal involves Rita Fix’s claim against First State Bank of
Roscoe and Roscoe Community Bankshares, Inc. (Bank) for intentional infliction of
emotional distress and abuse of process. The trial court dismissed Fix’s intentional
infliction of emotional distress claim; the abuse of process claim was tried to a jury.
Fix claims that the trial court erred in dismissing the intentional infliction of
emotional distress claim and erred in instructing the jury at trial. We reverse and
remand for a new trial on the abuse of process claim.
FACTS AND BACKGROUND
[¶2.] Part of the controversy between Fix and the Bank involves property
Fix owned in Faulk County, South Dakota. In 1997, Fix signed a contract for deed
selling the property to her son and daughter-in-law, Jeff and Marie Fix, but
retained a life estate in the house located on the property. In 1999, Jeff and Marie
obtained a loan from the Bank to finance their farming operation. To secure the
loan, the Bank required Jeff and Marie to obtain a warranty deed for the property,
including Fix’s life estate in the house. Although hesitant to relinquish her house,
Fix eventually executed a warranty deed to Jeff and Marie after the Bank assured
her that she could retain possession of the house. In a letter from the Bank
president, the Bank wrote:
In the event that for any reason the bank becomes the owner of
the described real estate, you will have full right of possession to
the home on the premises as long as you are living.
[¶3.] In 2004, Fix filed for bankruptcy in federal court. Fix did not claim a
homestead exemption for the house nor list her interest in the house as personal
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property. Fix retained possession of the house until 2005 when Jeff and Marie’s
financial problems forced them to convey the house and the property to the Bank in
lieu of foreclosure. Later that same year, the Bank sold the property to a third
party and then sought to remove Fix from the house.
[¶4.] While in federal bankruptcy court, Fix sued the Bank in state court
for: (1) right to possession of the house; (2) breach of fiduciary duty; (3) intentional
infliction of emotional distress; (4) deceit; and (5) fraudulent misrepresentation. In
response, the Bank requested that the bankruptcy court enjoin Fix’s state action.
The Bank claimed that Fix’s cause of actions belonged to the bankruptcy estate not
Fix personally. The bankruptcy court agreed with the Bank that all five alleged
causes of action could only be brought by Fix’s bankruptcy trustee. Eventually, the
issue was appealed to federal district court and to the Eighth Circuit Court of
Appeals. The Eighth Circuit found that all of Fix’s claims belonged to the
bankruptcy estate with one exception: Fix’s claim for intentional infliction of
emotional distress. See Fix v. First State Bank of Roscoe, 559 F.3d 803, 810 (8th
Cir. 2009).
[¶5.] In addition to the bankruptcy and civil proceedings, Jeff, Marie, and
Fix were indicted in June 2005 in state court on multiple criminal counts. The
criminal counts involved an alleged criminal scheme where Jeff sold grain covered
by the Bank’s security interest in Fix’s name; Fix would then endorse the grain
checks, deposit them in her account, and write Jeff a check for the amount. Jeff
ultimately pled guilty and the charges against Marie were dismissed. The criminal
proceedings against Fix, however, were not dismissed but remained dormant for
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several months despite her attorney’s requests to proceed or dismiss. Eventually in
February 2006, Vaughn Beck, the Edmunds County State’s Attorney who had
brought the charges and who also represented the Bank civilly, contacted Fix’s
criminal attorney. Beck offered to dismiss the criminal charges against Fix if she
would “deed the house back to the bank.” This prompted Fix to amend her state
court pleadings to include a claim of abuse of process against both the Bank and
State’s Attorney Beck and to proceed with her intentional infliction of emotional
distress claim against the Bank. Her abuse of process claim alleged that the Bank
conspired with Beck to use the criminal proceeding for the illegitimate purpose of
removing her from the house.
[¶6.] Prior to trial, Beck settled with Fix for $50,000. Additionally, the trial
court granted summary judgment against Fix on her intentional infliction of
emotional distress claim against the Bank. The abuse of process claim was tried to
a jury in February 2010. The jury returned a verdict finding the Bank liable but
awarded no damages to Fix.
ISSUES
[¶7.] Fix raises several issues on appeal. (1) Fix claims that the trial court’s
instruction on emotional distress was improper and not a correct statement of the
law. The trial court’s instruction required Fix to prove “she suffered extreme and
disabling emotional distress as a proximate result of the abuse of process.”
(Emphasis added.) She claims that she does not need to prove that her emotional
distress was “extreme and disabling.” (2) Fix also claims that the trial court erred
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in dismissing her claim of intentional infliction of emotional distress against the
Bank.
[¶8.] Additionally, Fix claims error (3) because the Bank was allowed to
argue its damages without claiming offset or restitution; (4) because the trial court
improperly applied the offset provision of the joint tortfeasor statute; (5) because
the alternate juror was selected by lot contrary to statute; and (6) because expenses
incurred in a separate federal court proceeding were incorrectly taxed as costs. The
Bank also raises three issues by notice of review that we deem waived or without
merit.
ANALYSIS
[¶9.] 1. Emotional distress damages resulting from an abuse of
process claim need not be “extreme and disabling” in
order to recover.
[¶10.] Under our standard of review for jury instructions:
A trial court has discretion in the wording and arrangement of
its jury instructions, and therefore we generally review a trial
court’s decision to grant or deny a particular instruction under
the abuse of discretion standard. However, no court has
discretion to give incorrect, misleading, conflicting, or confusing
instructions; to do so constitutes reversible error if it is shown
not only that the instructions were erroneous, but also that they
were prejudicial.
Bertelsen v. Allstate Ins. Co., 2011 S.D. 13, ¶ 26, 796 N.W.2d 685, 695 (quoting
Wangsness v. Builders Cashway, Inc., 2010 S.D. 14, ¶ 10, 779 N.W.2d 136, 140
(quoting State v. Cottier, 2008 S.D. 79, ¶ 7, 755 N.W.2d 120, 125)).
[¶11.] Several of the trial court’s jury instructions required the jury to find
severe, extreme, and disabling emotional distress in order for Fix to recover
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damages.1 We hold that Fix was not required to show that she suffered extreme
and disabling emotional distress in order to recover damages for emotional distress
caused by the abuse of process.
[¶12.] The Bank mistakenly relies on our prior decision in Maryott v. First
National Bank of Eden, 2001 S.D. 43, 624 N.W.2d 96, 104. In Maryott, the plaintiff
sued First National Bank of Eden under a statutorily adopted Uniform Commercial
Code (U.C.C.) provision that makes a bank liable to its customers if it wrongfully
dishonored checks. See SDCL 57A-4-402(b). The statute at issue provided damages
as follows:
(b) A payor bank is liable to its customer for damages
proximately caused by the wrongful dishonor of an item.
Liability is limited to actual damages proved and may include
damages for an arrest or prosecution of the customer or other
consequential damages. Whether any consequential damages
1. Fix contends the following four jury instructions were an incorrect statement
of the law:
1. Jury Instruction No. 4 provided that the jury must find
Fix “suffered an extreme and disabling emotional distress
as a result of [the Bank] and Vaughn Beck’s agreement to
use, and their use of, a criminal prosecution primarily for
an improper purpose.”
2. Jury Instruction No. 11 provided that Fix “may only
recover damages for severe emotional distress.”
3. Jury Instruction No. 25 provided that if the jury decides
for Fix on the question of liability, the jury “must then fix
the amount of money which will reasonably and fairly
compensate” Fix for “the pain and suffering, extreme
emotional distress and loss of capacity of the enjoyment of
life . . . . ”
4. Special Verdict Question No. 4 directed the jury that they
must find Fix “suffered extreme and disabling emotional
distress as a proximate result of the abuse of process.”
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are proximately caused by the wrongful dishonor is a question of
fact to be determined in each case.
Id. The question was whether emotional damages were included and recoverable as
“other consequential damages.” Since the statute did not define “other
consequential damages,” this Court looked to other jurisdictions that had
interpreted the same 402(b) language and followed those jurisdictions that required
proof of intentional or negligent infliction of emotional distress. We held that,
[b]ecause [the statute] does not define the consequential
damages that may be recovered and does not clearly indicate an
independent right of recovery of emotional damages, we must
interpret that section in light of our precedent which requires a
plaintiff to prove either intentional or negligent infliction of
emotional distress to recover emotional damages.
Maryott, 2001 S.D. 43, ¶ 20, 624 N.W.2d at 103.
[¶13.] Maryott is distinguishable from the present tort case and should be
read narrowly, mainly because the plaintiff’s claim in Maryott was based on a
U.C.C. statutory right to recover damages for a dishonored check. It did not involve
a tort action. Maryott held that a plaintiff could not recover emotional damages
under the statute unless the plaintiff met the requirements of the independent tort
of negligent or intentional infliction of emotional distress. Id. ¶ 17. Similarly, the
Wyoming Supreme Court and Minnesota Supreme Court both found that “‘extra-
contractual damages, including those for emotional distress, are not recoverable for
breach of contract except in those rare cases where the breach is accompanied by an
independent tort.’” Long-Russell v. Hampe, 39 P.3d 1015, 1019 (Wyo. 2002)
(quoting Lickteig v. Alderson, Ondov, Leonard & Sween, P.A., 556 N.W.2d 557, 561
(Minn. 1996)).
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[¶14.] In South Dakota, tort damages are governed by SDCL 21-3-1, which
provides: “For the breach of an obligation not arising from contract, the measure of
damages, except where otherwise expressly provided by this code, is the amount
which will compensate for all the detriment proximately caused thereby, whether it
could have been anticipated or not.” (Emphasis added.) We have consistently
recognized emotional distress damages in tort actions. Roth v. Farner-Bocken Co.,
2003 S.D. 80, ¶ 70, 667 N.W.2d 651, 670 (upholding a jury award of damages for the
feelings of “anger, betrayal, and devastation” in an invasion of privacy action);
Carey v. Jack Rabbit Lines, Inc., 309 N.W.2d 824, 827 (S.D. 1981) (upholding a trial
court’s award of damages in a negligence action as reasonable because “in addition
to the painful injury, appellee . . . suffered mental anguish”); Bean v. Best, 77 S.D.
433, 441-42, 93 N.W.2d 403, 408 (1958) (“A person who has a cause of action for a
tort may be entitled to recover as an element of damages for that form of mental
distress known as humiliation, that is, a feeling of degradation or inferiority . . . .”
(emphasis added) (quoting Restatement (First) of Torts § 905 cmt. d (1939))); Davis
v. Holy Terror Mining Co., 20 S.D. 399, 107 N.W. 374, 379 (1906) (reasoning that in
determining damages “the jury should take into consideration the age and condition
in life of the plaintiff, the physical injury inflicted, the bodily pain and mental
anguish endured” (emphasis added)). Since an abuse of process claim is an
intentional tort, a plaintiff can seek damages in the form of emotional distress
without proving the independent tort of intentional infliction of emotional distress
and without proving the heightened standard of “extreme and disabling” emotional
distress.
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[¶15.] This holding comports with other jurisdictions that recognize a
plaintiff’s right to recover damages for mental anguish in abuse of process actions
without requiring the plaintiff to meet the heightened standard of “extreme and
disabling.” For example, in reviewing damages awarded by a jury in an abuse of
process action, the North Dakota Supreme Court found that “[a] jury may properly
consider wounded feelings, mental suffering, humiliation, degradation, and disgrace
in fixing compensatory damages.” Stoner v. Nash Finch, Inc., 446 N.W.2d 747, 753
(N.D. 1989). In a footnote, the North Dakota court distinguished damages in an
abuse of process cause of action from those in a negligent infliction of emotional
distress cause of action. The court noted that the “tort of abuse of process, unlike
the tort of negligent infliction of emotional distress, does not require ‘[s]pecific proof
of intangible damages [such as mental injury] . . . as a prerequisite to an award if it
is clear that such damages would accrue to a normal person.’” Id. at 753 n.3
(alteration in original) (quoting Prosser & Keeton, The Law of Torts § 121, at 900
(5th ed. 1984)).
[¶16.] In summary, we hold that to recover emotional distress damages
sustained as a result of the tort of abuse of process, a plaintiff is not required to
prove the elements of intentional or negligent infliction of emotional distress. The
trial court erred by requiring Fix to prove that her emotional damages were
“extreme and disabling.” Because the jury was given the wrong legal standard for
recovering emotional distress damages, we reverse and remand for a new trial.
[¶17.] 2. Fix failed to show a genuine issue of material fact for her
intentional infliction of emotional distress claim.
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[¶18.] Summary judgment is authorized “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” SDCL 15-6-56(c). We will
affirm only when “there are no genuine issues of material fact and the legal
questions have been correctly decided.” Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.
1987).
[¶19.] To survive the Bank’s motion for summary judgment, Fix needed to
demonstrate that there was an issue of material fact as to each of the elements of
intentional infliction of emotional distress: “(1) an act by the defendant amounting
to extreme and outrageous conduct; (2) intent on the part of the defendant to cause
the plaintiff severe emotional distress; (3) the defendant’s conduct was the cause in-
fact of plaintiff’s distress; and (4) the plaintiff suffered an extreme disabling
emotional response to defendant’s conduct.” Anderson v. First Century Fed. Credit
Union, 2007 S.D. 65, ¶ 38, 738 N.W.2d 40, 51-52.
[¶20.] The first element requires Fix to show there is no genuine issue of
material fact as to whether the Bank’s conduct was “extreme and outrageous.” Fix
claims that the Bank’s act of selling and requiring her to vacate the house in direct
contravention to the Bank’s 1999 letter promising her possession for life constituted
extreme and outrageous conduct. We have said:
The question whether the defendant’s conduct was extreme and
outrageous is initially for the trial court. Richardson v. East
River Elec. Power Coop., 531 N.W.2d 23, 27 (S.D. 1995).
Comment d to the Restatement (Second) of Torts § 46 (1965)
explains that recovery is permissible only where the actor’s
conduct was “extreme and outrageous.” Proof under this tort
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must exceed a rigorous benchmark. The conduct necessary to
form intentional infliction of emotional distress must be “so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and be regarded as
atrocious, and utterly intolerable in a civilized community.” Id.
See Stene v. State Farm Mut. Auto. Ins. Co., 1998 S.D. 95, ¶ 32,
583 N.W.2d 399, 404; Tibke v. McDougall, 479 N.W.2d 898, 906-
07 (S.D. 1992). Liability for this tort will “not extend to mere
insults, indignities, threats, annoyances, petty oppression, or
other trivialities.” Restatement (Second) of Torts § 46 cmt. d.
Harris v. Jefferson Partners, L.P., 2002 S.D. 132, ¶ 11, 653 N.W.2d 496, 500. The
conduct “is of a nature especially calculated to cause, and does cause, mental
distress of a very serious kind.” See Citibank (S.D.), N.A. v. Hauff, 2003 S.D. 99, ¶
24, 668 N.W.2d 528, 535.
[¶21.] The facts, as set forth by Fix, do not meet that “rigorous benchmark.”
Harris, 2002 S.D. 132, ¶ 11, 653 N.W.2d at 500. Fix’s main argument relies on the
Eighth Circuit’s decision that Fix owned the cause of action of intentional infliction
of emotional distress. That decision, however, only dealt with ownership of the
cause of action, not whether Fix could withstand a summary judgment motion. She
bases her claim on the Bank’s failure to abide by the letter’s promise that she could
remain in the house. Instead, the Bank sold the property and told her she had to
move out, which she claims caused her severe emotional distress. The Bank may
have intentionally reneged on its promise, but such conduct under the
circumstances cannot be characterized as “extreme and outrageous” or exceeding
“all bounds usually tolerated by decent society.” See Stene, 1998 S.D. 95, ¶ 32, 583
N.W.2d at 404. Therefore, even assuming Fix’s version of events, granting
summary judgment was not error.
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[¶22.] 3. Allowing the Bank to argue in its defense that Fix caused
financial loss to the Bank was not error.
[¶23.] We review a court’s evidentiary rulings under the abuse of discretion
standard. State ex rel. Dep’t of Transp. v. Spiry, 1996 S.D. 14, ¶ 11, 543 N.W.2d
260, 263 (citations omitted). An evidentiary ruling will not be overturned unless
error is “demonstrated . . . [and] shown to be prejudicial error.” Id. (quoting Shaffer
v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D. 1976)).
[¶24.] Fix argues that during closing arguments, the Bank should not have
been allowed to refer to its underlying losses due to Fix’s conversion of thousands of
dollars of the Bank’s collateral. According to Fix, the argument was impermissible
for two reasons. First, the Bank is required to confine their comments to issues
presented by the evidence. Schoon v. Looby, 2003 S.D. 123, ¶ 14, 670 N.W.2d 885,
890. Fix contends that because the Bank did not assert a counterclaim or request
an offset, the Bank should have not been allowed to comment about its financial
losses. Second, Fix argues that the reference to the Bank’s losses misled the jury
about the measure of damages and was highly prejudicial.
[¶25.] Allowing the reference in final argument is not reversible error. The
Bank’s argument was relevant to Fix’s claim that the Bank used the criminal
prosecution “primarily for an improper purpose.”2 The Bank presented evidence
2. The relevant portion of Jury Instruction No. 4 provides
In this action, Rita Fix has the burden of proving . . . [t]hat [she]
suffered an extreme and disabling emotional response as a
result of [the Bank] and Vaughn Beck’s agreement to use, and
their use of, a criminal prosecution primarily for an improper
purpose.
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and claimed that using criminal proceedings to seek restitution for the Bank’s
losses was a proper purpose. Additionally, the Bank’s counsel explicitly told the
jury that it was not seeking restitution from Fix as part of this lawsuit. Thus, we
find that the trial court did not abuse its discretion by allowing the Bank to refer to
its underlying loss in its closing argument.
[¶26.] 4. The joint tortfeasor’s settlement amount reduces a total
judgment not just compensatory damages.
[¶27.] Before trial, Beck, an alleged co-conspirator in Fix’s abuse of process
claim, settled with Fix for $50,000 in exchange for a complete release. The trial
court indicated that it intended to deduct the $50,000 from any jury award for
compensatory damages. Thus, if the jury awarded compensatory damages of
$50,000 or less, the award would be reduced to zero leaving no compensatory
damages to support a punitive damage claim. We find this rationale misplaced.
Normally, we would not address this issue because the jury awarded no damages,
and Fix was not affected by the ruling. However, since this may become an issue on
retrial, we will address it.
[¶28.] The issue is controlled by SDCL 15-8-17, which was adopted pursuant
to the Uniform Contribution Among Tortfeasors Act. The statute provides:
A release by the injured person of one joint tort-feasor, whether
before or after judgment, does not discharge the other tort-
feasors unless the release so provides; but reduces the claim
against the other tort-feasors in the amount of the consideration
paid for the release, or in any amount or proportion by which the
release provides that the total claim shall be reduced, if greater
than the consideration paid.
(Emphasis added.) The statute expressly allows a reduction to “total claim” against
the remaining joint tortfeasors. It makes no distinction between compensatory and
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punitive damages. Although this issue has not been previously addressed, our
analysis of SDCL 15-8-17 in prior cases contemplated that any settlement amount
from one joint tortfeasor reduced the total judgment against other joint tortfeasors.
See Schick v. Rodenburg, 397 N.W.2d 464, 467-68 (S.D. 1986); Duncan v.
Pennington Cnty. Hous. Auth., 283 N.W.2d 546, 550 (S.D. 1979) (citing Degan v.
Bayman, 90 S.D. 400, 241 N.W.2d 703 (1976)). For example, in determining joint
tortfeasor status under SDCL 15-8-17 in Schick, we reiterated “that [the settlement
amount] must be so credited [against the judgment].” 397 N.W.2d at 468 (alteration
in original). Thus, the $50,000 should be deducted from the total judgment, if any,
not just to offset compensatory damages.
[¶29.] 5. Current procedural rules allow for seating an alternate
juror by lot.
[¶30.] Supreme Court Rule 06-42 codified in SDCL 15-6-47(b) allows, in
addition to regular jurors, additional jurors to “be called and impaneled to sit as
alternate jurors.” Alternate jurors are seated to replace regular jurors who “prior to
the time the jury retires to consider its verdict, become or are found to be unable or
disqualified to perform their duties.” Id. Under this Rule, the alternate jurors are
chosen “in the order in which they are called.” Id. An additional Rule, at issue
here, allows the judge to select “alternate jurors by lot.” The Rule provides:
In addition to the method of choosing or seating an alternate
juror provided by § 15-6-47(b), the judge may choose the
alternate jurors by lot, or by such other means as the parties
agree on the record.
SDCL 15-14-10.1. Fix argues that the Rule only allows selection by lot if the parties
agree. Under her interpretation, the phrase “or by such other means as the parties
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agree on the record,” modifies the phrase “the judge may choose the alternate jurors
by lot” and selection by lot could only be used if the parties agree. A plain reading
of the Rule suggests otherwise. The grammatical construction of the sentence sets
off the final phrase – “or by such other means as the parties agree on the record” –
by a comma. The placement of the comma drives its meaning. The comma
separates two distinct concepts, that is, picking jurors “by lot” and picking them “by
such other means.” The second concept – “by such other means” – has a further
qualifier – “as the parties agree on the record.” Perhaps without the comma, a
stronger argument could be made that the parties have to agree to either method of
picking alternate jurors. But, we have to assume the drafter’s placement of the
comma was purposeful. Consequently, we conclude that the judge has the
discretion to pick alternate jurors by lot.
[¶31.] 6. Whether costs incurred in a separate federal court
proceeding can be taxed in this matter.
[¶32.] “We review an award of disbursements under an abuse of discretion
standard.” Behrens v. Wedmore, 2005 S.D. 79, ¶ 69, 698 N.W.2d 555, 581.
However, “[o]nly those expenses specifically authorized by statute may be taxed as
disbursements, and although the trial court has some discretion, it must use
cautious restraint within the statutory specifications.” Id. (quoting Lewis v.
Aslesen, 2001 S.D. 131, ¶ 10, 635 N.W.2d 744, 747 (additional citations omitted)).
[¶33.] If costs are again an issue on retrial, we caution the trial court, before
awarding costs, to require a showing that the costs were “necessary expenditures
‘incurred in gathering and procuring evidence or bringing the matter to trial’” and
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only award the prevailing party expenses and charges that are of the same general
kind as the
costs of telephonic hearings, costs of telephoto or fax charges,
fees of witnesses, interpreters, translators, officers, printers,
service of process, filing, expenses from telephone calls, copying,
costs of original and copies of transcripts and reporter’s
attendance fees, court appointed experts . . . .
DeHaven v. Hall, 2008 S.D. 57, ¶ 52, 753 N.W.2d 429, 445 (quoting SDCL 15-17-37).
[¶34.] Because the trial court provided the jury with the incorrect legal
standard for the recovery of emotional damages, we reverse and remand for trial.
[¶35.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
SEVERSON, Justices, concur.
[¶36.] WILBUR, Justice, did not participate.
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