Rumpca v. Brenner , 2012 S.D. LEXIS 33 ( 2012 )


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  • #26083-rev & rem-JKK
    
    2012 S.D. 33
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    ****
    DOUGLAS A. RUMPCA,                        Plaintiff and Appellant,
    v.
    GLENN A. BRENNER,                         Defendant and Appellee.
    ****
    APPEAL FROM THE CIRCUIT COURT OF
    THE SEVENTH JUDICIAL CIRCUIT
    PENNINGTON COUNTY, SOUTH DAKOTA
    ****
    THE HONORABLE ROBERT A. MILLER
    Retired Justice
    ****
    JOHN K. NOONEY
    ROBERT J. GALBRAITH of
    Nooney, Solay & Van Norman, LLP
    Rapid City, South Dakota                  Attorneys for plaintiff
    and appellant.
    MICHAEL M. HICKEY
    SARAH BARON HOUY of
    Bangs, McCullen, Butler, Foye
    & Simmons, LLP
    Rapid City, South Dakota                  Attorneys for defendant
    and appellee.
    ****
    ARGUED ON JANUARY 10, 2012
    OPINION FILED 05/02/12
    #26083
    KONENKAMP, Justice
    [¶1.]        In this alienation of affections suit, the circuit court granted
    defendant’s motion for summary judgment, declaring that there were no affections
    to alienate. Because the record indicates genuine issues of material fact on this
    question, we reverse and remand for trial.
    Background
    [¶2.]        Kellie and Doug Rumpca married on August 28, 1990. They had two
    children during the marriage. In 2002, the Rumpcas moved to Rapid City, South
    Dakota from Michigan. They became acquainted with Glenn Brenner. At the time,
    Brenner was married to Christina. In 2005, however, the Brenners commenced
    divorce proceedings. Around 2005 or 2006, Glenn Brenner and Kellie became
    friends. The Brenners’ daughter and the Rumpcas’ daughter attended preschool
    together. According to Brenner, “[a]s their children became friends, [he and Kellie]
    would sometimes see one another at extracurricular activities or carpool rides for
    the children.” They also began to talk on the phone regularly, with Brenner
    initiating most of the calls. From April 2008 until Labor Day weekend in 2009,
    Kellie and Brenner averaged 13.5 hours on the phone each month.
    [¶3.]        Brenner and Kellie also ran together ten to fifteen times over a three-
    year period. In January 2009, they both participated in a marathon in Arizona.
    Brenner picked Kellie up from the airport and took her to dinner and a movie. Six
    months later, on July 24, 2009, Kellie and Brenner met at a hotel in Rapid City.
    Brenner reserved the room. He later testified that Kellie insisted on meeting, as
    she wanted to talk about her marital unhappiness. They slept together in the same
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    #26083
    bed, but Brenner maintains that although the two kissed, he told Kellie the
    relationship would not move beyond mere friendship “while she was married.”
    [¶4.]        At some point before the 2009 Labor Day weekend, Kellie told Brenner
    that she filed for a divorce from Rumpca. On Labor Day weekend, Brenner took
    Kellie to Buffalo, Wyoming. There, the two had sexual intercourse. Kellie and
    Brenner spent another night together shortly after that. As it turned out, however,
    Kellie had not yet sued for divorce from Rumpca. She commenced divorce
    proceedings in October 2009.
    [¶5.]        In April 2010, Doug Rumpca brought suit against Brenner for
    alienation of affections. He alleged that Brenner wrongfully, willfully,
    intentionally, and maliciously interfered with his marital relationship with Kellie.
    As a result of such interference, Rumpca claimed that he suffered a loss of affection
    and consortium from Kellie. He moved the court to allow discovery on the issue of
    punitive damages. The court ruled that there was no reasonable basis to believe
    Brenner’s conduct was willful, wanton, or malicious and denied Rumpca’s discovery
    request.
    [¶6.]        Brenner moved for summary judgment, asserting that Kellie had no
    affections for Rumpca that Brenner could have alienated. Rumpca, in response,
    insisted that his marriage to Kellie was “well above average, exceptionally good,”
    and that Kellie had affection for him before Brenner interfered. The court held a
    hearing, considered depositions and affidavits, and granted the motion. It
    concluded that the evidence indisputably showed that Kellie had no affections for
    Rumpca at the time of Brenner’s conduct. Rumpca appeals, asserting that the court
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    #26083
    erred when it granted summary judgment to Brenner and also erred in holding that
    Rumpca failed to make a prima facie showing for punitive damages.
    Analysis and Decision
    [¶7.]        “The gravamen of an action for alienation of affections is enticement.”
    Pankratz v. Miller, 
    401 N.W.2d 543
    , 549 (S.D. 1987) (quoting Pedersen v. Jirsa, 
    125 N.W.2d 38
    , 43 (Minn. 1963)) (emphasis omitted). Under South Dakota law, the
    rights of personal relation forbid the “enticement of a wife from her husband[.]”
    SDCL 20-9-7(2). To establish a claim, one must prove:
    1. Wrongful conduct by the defendant with specific intent to
    alienate one spouse’s affections from the other spouse (such
    intent may develop at any point during the adulterous
    relationship);
    2. Loss of affection or consortium; and
    3. A causal connection between such intentional conduct and
    loss.
    State Farm Fire & Cas. Co. v. Harbert, 
    2007 S.D. 107
    , ¶ 24, 
    741 N.W.2d 228
    , 236
    (citations omitted). The circuit court granted summary judgment based solely on a
    lack of proof on element two: loss of affection. Thus, we address only this element
    on appeal. If there were no affections to alienate, there was no tort. See Veeder v.
    Kennedy, 
    1999 S.D. 23
    , ¶ 27, 
    589 N.W.2d 610
    , 617 (citation omitted).
    [¶8.]        Because the case was disposed of by summary judgment, we must
    address a legal question: did a genuine issue of material fact exist on whether Kellie
    had affections for Rumpca that Brenner could have alienated? On review of
    summary judgment, “we decide only whether genuine issues of material fact exist
    and whether the law was correctly applied.” Bordeaux v. Shannon Cnty. Sch., 2005
    -3-
    #
    26083 S.D. 117
    , ¶ 11, 
    707 N.W.2d 123
    , 126 (citations omitted). In these circumstances, we
    must look at all the evidence. Fisher v. Kahler, 
    2002 S.D. 30
    , ¶ 5, 
    641 N.W.2d 122
    ,
    124-25.
    [¶9.]        Kellie testified in her deposition that she had stopped loving her
    husband in the late 1990s, long before she began her relationship with Brenner.
    Kellie also testified that despite their attempts at marriage counseling, she
    remained unhappy and was not in love with Rumpca. Brenner also presented
    evidence attesting to the fact that Kellie was unhappy in the marriage. One
    witness, Chris Lenger, had a romantic relationship with Kellie in 2004. While
    Kellie and Lenger did not engage in sexual intercourse, the two talked on the phone
    regularly, kissed, and “made out.” Other witnesses testified that Kellie was overly
    flirtatious with other men, despite being married. Thus, the circuit court concluded
    that Rumpca’s argument that “Kellie was happy in her marriage until the time she
    met Brenner simply does not hold water and is overwhelmingly rebutted by Kellie
    herself.”
    [¶10.]       Yet Kellie’s testimony must be weighed with all the other evidence.
    Indeed, there were ample circumstantial facts to contradict Kellie. And we must
    view this evidence in a light most favorable to the nonmoving party, Rumpca. See
    Luther v. City of Winner, 
    2004 S.D. 1
    , ¶ 6, 
    674 N.W.2d 339
    , 343. In 2000, Kellie
    gave her husband a card on their tenth anniversary, writing, “These have been the
    best 10 years of my life. I’m so blessed to have you for my husband. I love you.
    Love your wife.” One of the marriage counselors they saw, Colleen Waxler, noted in
    2006 that “Kellie and Doug reported their relationship has improved greatly. They
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    #26083
    are communicating effectively, expressing love to each other . . . . It has rekindled
    their feeling for each other and both are much happier.” Another therapist, Pat
    Karn, reported that Kellie told her in 2008 that she still loved Rumpca. Sometime
    in 2007 or 2008, Kellie underwent breast augmentation surgery because she
    thought she would be more attractive to her husband. In 2009, the Rumpcas took a
    family vacation to Hawaii. Kellie later told a friend that this was going to be an
    annual trip. These facts are inconsistent with the loveless relationship Kellie
    depicted in her deposition.
    [¶11.]          From an examination of the entire record, we conclude that this
    conflicting evidence creates a genuine issue of material fact on whether Kellie had
    affection for her husband that Brenner could have alienated. These disagreements
    must be resolved by a jury. On the question of discovery for punitive damages
    purposes, we decline to rule at this time. Because the case is being remanded for
    trial, the circuit court will have another opportunity to consider punitive damages,
    and any such determination would be better reviewed after final judgment.
    [¶12.]          Reversed and remanded for trial.
    [¶13.]          GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
    and MYREN, Circuit Court Judge, concur.
    [¶14.]          MYREN, Circuit Court Judge, sitting for WILBUR, Justice,
    disqualified.
    -5-
    

Document Info

Docket Number: 26083

Citation Numbers: 2012 S.D. 33, 814 N.W.2d 128, 2012 SD 33, 2012 S.D. LEXIS 33, 2012 WL 1549517

Judges: Konenkamp, Gilbertson, Zinter, Severson, Myren, Wilbur

Filed Date: 5/2/2012

Precedential Status: Precedential

Modified Date: 11/12/2024