Huether v. Mihm Transportation Co.

#26784-a-GAS
2014 S.D. 93IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
CURTIS HUETHER, Plaintiff and Appellant,
v.
MIHM TRANSPORTATION CO.,
PAUL RADLOFF, and ROD SPARTZ, Defendants and Appellees,
and
DAVID BISSON, and JEFF DIETRICH, Defendants.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
HUTCHINSON COUNTY, SOUTH DAKOTA
****
THE HONORABLE PATRICK SMITH
Judge
****
SCOTT R. SWIER
BROOKE SWIER SCHLOSS
Swier Law Firm, Prof. LLC
Avon, South Dakota Attorneys for plaintiff
and appellant.
SABRINA L. SAYLER
Crary, Huff, Ringgenberg, Hartnett
& Storm, PC
Dakota Dunes, South Dakota Attorneys for defendants and
appellees Mihm and Paul
Radloff.
SCOT D. MANNSCHRECK
Vermillion, South Dakota Attorney for defendant and
appellee Rod Spartz.
****
CONSIDERED ON BRIEFS ON
NOVEMBER 17, 2014
OPINION FILED 12/23/14
#26784
SEVERSON, Justice
[¶1.] Curtis Huether brought this action alleging fraudulent
misrepresentation and deceit and civil conspiracy against David Bisson, Mihm
Transportation Co. (Mihm), Paul Radloff, Rod Spartz, and Jeff Dietrich (collectively
Defendants). Bisson did not defend the lawsuit, and as a result, the circuit court
entered a default summary judgment against him for fraudulent misrepresentation
and deceit in the amount of $100,004 in actual damages and $1,000,000 in punitive
damages. A jury trial was held on the remaining claims against Defendants. The
jury found in favor of Huether on the civil conspiracy claim as to Mihm and Radloff.
The jury awarded Huether $1,891 against Mihm and $500 against Radloff, and the
circuit court imposed joint and several liability for the total jury award ($2,391)
against Mihm and Radloff. Huether appeals asserting that the circuit court erred
in failing to impose upon Bisson, Mihm, and Radloff joint and several liability for
the totality of the summary judgment award, including punitive damages, and in
denying his motion for judgment as a matter of law against Spartz. We affirm.
Facts and Procedural History
[¶2.] In September 2008, Bisson contacted Huether with a proposed deal
wherein Huether would purchase 70 “open” (i.e., non-pregnant) heifers from Bisson
at $1,425 per head (totaling $99,750), Huether would breed the open heifers, and
then Bisson would purchase the “springing” (i.e., impregnated) heifers from
Huether at $2,000 per head (totaling $140,000). Huether and Bisson had entered a
written agreement in the past, and the two proceeded under an understanding
similar to the terms of the prior agreement. Although Bisson promised a written
-1-
#26784
contract, none was provided or entered into. Bisson hired Mihm to transport the
heifers from Indiana to Huether’s farm in Hutchinson County, South Dakota.
Mihm contracted with Radloff to transport the heifers and sent load information to
Radloff. Radloff transported the heifers to Huether and, upon arrival to Huether’s
farm on September 9, 2008, Radloff gave Huether the heifers’ health certificates
and the transportation bill, which totaled $2,391. Huether did not review the
health certificates at that time.
[¶3.] Bisson called Huether a few days after the heifers arrived and
arranged for Bisson and Bisson’s veterinarian, Jeff Dietrich, to dehorn some of the
heifers and further “work” the heifers on September 24, 2008, even though Huether
would not be at his farm that day. Bisson assured Huether that he did not need to
be present. Huether alleged at trial that Bisson and Dietrich altered the heifers’
identification tags that day so that the heifers would appear to originate from South
Dakota.
[¶4.] In January of 2009, some of the heifers began calving early. 1 As a
result, Huether called a local veterinarian to examine the heifers in March of 2009,
and the veterinarian ascertained that some of the supposedly open heifers were
actually pregnant when Radloff delivered them in September of 2008. In addition,
the veterinarian or the veterinarian’s assistant noticed that the heifers’
identification tags appeared to have been altered or removed. Huether then
examined the health certificates that accompanied the heifers when they were
delivered by Radloff. Huether’s examination revealed that the heifers’ state of
1. The normal gestation period for a heifer is about nine months.
-2-
#26784
origin, ages, identification information, cosignor and cosignee information, and
interstate movements appeared to be falsified or altered.
[¶5.] Huether alerted the South Dakota State Veterinarian and the United
States Department of Agriculture, both of which began investigating. The State
investigator, Dr. Mendel Miller, found that the heifers’ identifications and health
certificates were incorrect, the heifers’ medical information could not be verified,
and the heifers’ origin could not be determined. As a result, the State quarantined
the heifers until they were tested for tuberculosis. The heifers could not be sold or
moved while in quarantine. Huether could have had the heifers tested for
tuberculosis shortly after the quarantine began, but chose not to do so until more
information could be gathered about the heifers’ origin.
[¶6.] On June 1, 2009, while the heifers were under quarantine, Huether’s
attorney received a letter from Mihm and Radloff. The letter stated that the heifers
actually came from Spartz’s farm in Goodwin, South Dakota. Later that same day,
when Huether and his attorney called Mihm about the letter, Mihm, and later
Radloff, admitted the letter was a lie. Mihm claimed that Bisson had told him what
to write. Mihm also claimed that the heifers were from Indiana, so within a matter
of hours, Mihm gave two different accounts of the heifers’ origin. Radloff asserted
that he did not know that Bisson had directed Mihm to write the letter, but Mihm
and Radloff admitted they knew the letter was false when it was sent.
[¶7.] Having failed to ascertain the origin of the heifers from Mihm or
Radloff, Huether and Dr. Miller followed up on a possible lead in Spartz. Spartz
was a grain and beef farmer and had a long-standing business relationship with
-3-
#26784
Bisson. Spartz, too, lied about the origin of the heifers, claiming the heifers had
indeed come from his farm. Huether believed that Bisson directed Spartz to lie
about the origin of the heifers as part of the ongoing fraud against Huether. At
trial, Spartz admitted that he lied at Bisson’s request.
[¶8.] On or about October 29, 2009, Huether finally had the heifers tested
for tuberculosis; they tested negative. The State then lifted the quarantine. The
heifers were quarantined for approximately five months from March to October.
Huether sold the heifers for about $932 per head, and he alleged that he suffered
$100,004 in damages. The heifers were sold at approximately the same time that
they would have been sold to Bisson under the original contract.
[¶9.] Huether filed suit against Defendants in August of 2010, alleging,
inter alia, fraudulent misrepresentation and deceit and civil conspiracy. Huether
prayed for actual and punitive damages. Huether’s claim for $100,004 was
determined primarily by the difference between the claimed contract price of $2,000
per head and the price for which he eventually sold the heifers, $932 per head.
Trial testimony established that the market value of the heifers declined from the
time when Huether and Bisson settled on the contract price to when Huether sold
the heifers. Huether moved for summary judgment against Bisson regarding the
fraudulent misrepresentation and deceit claim, and the circuit court held a hearing
on April 25, 2013. Bisson did not appear or resist the claim. 2 The other Defendants
filed resistances to the motion for summary judgment by Huether against Bisson
2. Huether properly served Bisson with the lawsuit, all motions, and all other
actions throughout the pendency of the case.
-4-
#26784
because of the possibility of joint and several liability, but the circuit court ruled
that the co-defendants could not intervene. The circuit court entered default
summary judgment against Bisson for $100,004 in actual damages and $1,000,000
in punitive damages. The circuit court instructed all parties that the summary
judgment applied only to Bisson and that any underlying torts for the civil
conspiracy claim needed to be established at trial. Although not required by
statute, the court entered findings of fact and conclusions of law against Bisson, but
none of those findings or conclusions related to the civil conspiracy claim.
[¶10.] Huether proceeded to trial against the remaining Defendants. The
circuit court again clarified that the default summary judgment only applied to
Bisson and only pertained to Huether’s fraudulent misrepresentation and deceit
claim against Bisson, not the civil conspiracy claim. At trial Dr. Miller testified that
what happened with Huether’s heifers was “quite in depth and quite complicated,
[with] a lot of deception and dishonesty.” The State of South Dakota’s Chief
Veterinarian testified that “it’s one of the most confusing movements of livestock”
that he had ever seen. Mihm described its participation in the letter as a “lie,” a
“mistake,” and an “error in judgment.” Radloff stated that it was “the biggest
mistake I think I have ever made.” Spartz thought that lying to Huether was “no
big deal,” he did not think anything of it, and he did not care what happened.
[¶11.] At the close of plaintiff’s presentation of the evidence, the circuit court
denied both Huether’s and Defendants’ motions for judgment as a matter of law. At
the close of the parties’ presentation of the evidence, the court again denied
Huether’s and Defendants’ renewed motions for judgment as a matter of law
-5-
#26784
because the court believed there were issues of fact that needed to be decided by the
jury. The parties then submitted jury instructions and special interrogatories to the
court, and the court reviewed those instructions and interrogatories with the
parties’ attorneys. The circuit court instructed the jury that the court had
previously found that Bisson committed fraudulent misrepresentation and deceit
against Huether and that it had already awarded Huether $100,004 in actual
damages and additional punitive damages. The circuit court further instructed the
jury that Huether bore the burden of proving that two or more of the Defendants
conspired to commit fraud and deceit against Huether. The court properly
instructed the jury on the elements of civil conspiracy and fraudulent
misrepresentation and deceit. Defendants requested special interrogatories as to
whether Mihm, Radloff, Spartz, and Dietrich were individually liable to Huether for
fraudulent misrepresentation and deceit. The jury found that none of the
aforementioned Defendants were individually liable to Huether for fraud and deceit.
The circuit court also submitted to the jury a special interrogatory on Huether’s
civil conspiracy claim for each of the Defendants except Bisson. The jury held Mihm
liable to Huether on the basis of civil conspiracy in the amount of $1,891 and
Radloff liable to Huether on the basis of civil conspiracy for $500. These amounts
totaled what the evidence had established as the transportation bill for the heifers
paid by Huether to Mihm and Radloff (i.e., $2,391). The jury did not hold any of the
other Defendants liable to Huether on the basis of civil conspiracy.
[¶12.] After the jury entered its verdict, the parties submitted proposed
judgments to the circuit court. Huether’s proposed judgment held Bisson, Mihm,
-6-
#26784
and Radloff jointly and severally liable for $1,100,004. The circuit court ruled that
Bisson, Mihm, and Radloff were not jointly and severally liable for $1,100,004
because it was not established at trial or on summary judgment that Bisson was a
member of the civil conspiracy with Mihm and Radloff. Further, it was not
established that Bisson’s fraudulent misrepresentation or deceit was the underlying
tort for the civil conspiracy claim. The circuit court explained in its memorandum
opinion that the underlying tort for the civil conspiracy claim was not determined
and that it could have been something other than Bisson’s fraudulent
misrepresentation and deceit. The jury did not award punitive damages to Huether
against any of the Defendants. The circuit court upheld the jury verdict, and
Huether now appeals to this Court.
[¶13.] Huether raises three issues on appeal:
1. Whether the circuit court erred by not holding Bisson,
Mihm, and Radloff jointly and severally liable for the
actual damages awarded to Huether in the default
summary judgment against Bisson.
2. Whether the circuit court erred by not holding Bisson,
Mihm, and Radloff jointly and severally liable for the
punitive damages awarded to Huether in summary
judgment against Bisson.
3. Whether the circuit court erred in denying Huether’s
motion for judgment as a matter of law against Spartz.
Standard of Review
[¶14.] Huether contends that the circuit court erred in applying the law of
civil conspiracy and joint and several liability to the facts of the case. This
constitutes a mixed question of law and fact. See In re Dorsey & Whitney Trust Co.,
2001 S.D. 35, ¶ 6, 623 N.W.2d 468, 471 (stating a mixed question of law and fact
-7-
#26784
includes one in which “the historical facts are admitted or established, the rule of
law is undisputed, and the issue is whether . . . the rule of law as applied to the
established facts is or is not favorably satisfied[]” (quoting Permann v. S.D. Dep’t of
Labor, 411 N.W.2d 113, 118 (S.D. 1987) (internal quotation marks omitted)). In
determining the standard of review for a mixed question of law and fact, the Court
considers the nature of the inquiry. Stockwell v. Stockwell, 2010 S.D. 79, ¶ 16, 790
N.W.2d 52, 59. We stated in Stockwell:
If application of the rule of law to the facts requires an inquiry
that is ‘essentially factual’—one that is founded ‘on the
application of the fact-finding tribunal’s experience with the
mainsprings of human conduct’—the concerns of judicial
administration will favor the [circuit] court, and the [circuit]
court’s determination should be classified as one of fact
reviewable under the clearly erroneous standard. If, on the
other hand, the question requires us to consider legal concepts
in the mix of fact and law and to exercise judgment about the
values that animate legal principles, then the concerns of
judicial administration will favor the appellate court, and the
question should be classified as one of law and reviewed de novo.
Id. (quoting Darling v. W. River Masonry, Inc., 2010 S.D. 4, ¶ 10, 777 N.W.2d 363,
366). To the extent that Huether asks us to examine the application of a legal
doctrine to established facts, we review the application of the law under the de novo
standard of review. See id.; Hanson v. Vermillion Sch. Dist. No. 13-1, 2007 S.D. 9, ¶
24, 727 N.W.2d 459, 467. Factual issues are reviewed under the clearly erroneous
standard. Vander Heide v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 17, 736 N.W.2d 824,
831 (citing City of Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 9, 607 N.W.2d 22, 25).
-8-
#26784
[¶15.] However, Appellees point out that Huether also challenges whether
certain facts were found by the jury. 3 “When reviewing the sufficiency of the
evidence, we accept all evidence favorable to the verdict, and reasonable inferences
therefrom, without weighing credibility or resolving conflicts.” Fritzmeier v. Krause
Gentle Corp., 2003 S.D. 112, ¶ 9, 669 N.W.2d 699, 702 (quoting Maryott v. First
Nat’l Bank of Eden, 2001 S.D. 43, ¶ 21, 624 N.W.2d 96, 104). “If there is evidence if
believed by the fact finder that supports the jury’s verdict, then we will affirm.” Id.[¶16.] Finally, we review Huether’s claim that the circuit court erred in
denying his motion and renewed motion for judgment as a matter of law against
Spartz under the abuse of discretion standard. Bertelsen v. Allstate Ins. Co., 2013
S.D. 44, ¶ 16, 833 N.W.2d 545, 554 (citing Jacobs v. Dakota, Minn. & E. R.R. Corp.,
2011 S.D. 68, ¶ 9, 806 N.W.2d 209, 212). This Court’s review of motions and
renewed motions for judgment as a matter of law is well-established.
We view the evidence and testimony in a light most favorable to
the verdict[ and, t]hen, without weighing the evidence, the Court
must decide if there is evidence which would have supported or
did support a verdict. If sufficient evidence exists so that
reasonable minds could differ, judgment as a matter of law is
not appropriate. In resolving sufficiency of evidence issues on
appeal, this Court should examine the record to determine only
if there is competent and substantial evidence to support the
verdict.
Id. (citations omitted) (internal quotation marks omitted).
Analysis and Decision
3. Appellees argue that Huether’s claim rests on two factual inquiries: (1) Did
the jury find that Bisson, Mihm, and Radloff were members of a civil
conspiracy? and (2) Did the jury find that Bisson’s fraudulent
misrepresentation and deceit was the underlying tort of the civil conspiracy
that would allow the circuit court to impose joint and several liability?
-9-
#26784
[¶17.] 1. Whether the circuit court erred by not holding Bisson, Mihm, and
Radloff jointly and severally liable for the actual damages
awarded to Huether in default summary judgment against
Bisson.
[¶18.] Huether argues that the circuit court committed clear legal error when
it did not hold Bisson, Mihm, and Radloff jointly and severally liable under the
doctrine of civil conspiracy. Huether correctly points out that civil conspiracy is not
an independent cause of action, but rather a means of imposing vicarious liability.
Selle v. Tozser, 2010 S.D. 64, ¶ 25, 786 N.W.2d 748, 756 (citing Beck v. Prupis, 529
U.S. 494, 503, 120 S. Ct. 1608, 1615, 146 L. Ed. 2d 561 (2000)). In order to establish
a prima facie case of civil conspiracy, the plaintiff must prove: “(1) two or more
persons; (2) an object to be accomplished; (3) a meeting of the minds on the object or
course of action to be taken; (4) the commission of one or more unlawful overt acts;
and (5) damages as the proximate result of the conspiracy.” In re
Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1498
(8th Cir. 1997). Further, “[c]ivil conspiracy is not an independent cause of action,
but is sustainable only after an underlying tort claim has been established.” Selle,
2010 S.D. 64, ¶ 25, 786 N.W.2d at 756 (quoting Kirlin v. Halverson, 2008 S.D. 107, ¶
59, 758 N.W.2d 436, 455) (internal quotation marks omitted). “The purpose of a
civil conspiracy claim is to impose civil liability for damages on those who agree to
join in a tortfeasor’s conduct and, thereby, become liable for the ensuing damage,
simply by virtue of their agreement to engage in the wrongdoing.” Id. (quoting
Macomber v. Travelers Prop. & Cas. Corp., 894 A.2d 240, 254-55 (Conn. 2006)).
[¶19.] Huether’s primary contention is that the circuit court erred when it
failed to impose joint and several liability as to Bisson, Mihm, and Radloff for the
-10-
#26784
civil conspiracy claim. He asserts that the circuit court found as a matter of law
that Bisson committed fraudulent misrepresentation and deceit against Huether,
which is correct. The circuit court found Bisson committed fraudulent
misrepresentation and deceit against Huether in an unopposed summary judgment
hearing. However, Huether also insists that the circuit court found that Bisson’s
fraudulent misrepresentation and deceit was the “underlying tort claim” for the civil
conspiracy. Huether further contends that Bisson’s ongoing fraud was the only
possible underlying tort that could give rise to the civil conspiracy. Finally, Huether
asserts that “the jury found that Mihm and Radloff committed civil conspiracy by
joining Bisson’s tortious conduct.” We disagree.
[¶20.] The jury did not find, and was not asked to find: (1) what the
underlying tort claim was with regards to the civil conspiracy; (2) whether Bisson
was a co-conspirator in the civil conspiracy; (3) whether Bisson’s fraudulent
misrepresentation and deceit was the underlying tort for the civil conspiracy; and
(4) whether the damages (including the summary judgment damages) of the civil
conspiracy flowed from Bisson’s conduct or other conduct. There was no jury
instruction or special interrogatory asking or telling the jury to find any of the
aforementioned facts. In essence, nothing in the jury’s verdict linked Bisson, his
tortious conduct, or any proximately resulting damages to the civil conspiracy of
Mihm and Radloff. The jury specifically found that Mihm and Radloff conspired
against Huether and were liable to Huether for $1,891 and $500 respectively. The
circuit court correctly notes in its memorandum opinion that the jury could have
-11-
#26784
found the underlying tort to be something other than Bisson’s fraudulent
misrepresentation and deceit. 4
[¶21.] It is the parties’ duty to request jury instructions and special
interrogatories for their theory of the case. City of Sioux Falls v. Kelley, 513 N.W.2d
97, 108 (S.D. 1994) (citing Glanzer v. St. Joseph Indian Sch., 438 N.W.2d 204 (S.D.
1989)). “The failure of a court to correctly or fully instruct the jury is not reviewable
unless an objection or exception to the instruction identifying the defect therein
with sufficient particularity was taken or a written instruction correctly stating the
law was requested.” Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 757
(S.D. 1994) (quoting Wells v. Billars, 391 N.W.2d 668, 670 (S.D. 1986)). Under
SDCL 15-6-51(a)-(c), the circuit court must give the parties the opportunity to
request jury instructions, inform the parties about the jury instructions that have
been requested, and give the parties the opportunity to object to the court’s
proposed jury instructions before they are settled. The circuit court provided the
parties with such opportunities. Huether objected to the form and content of some
of those jury instructions. “A party who objects to an instruction or the failure to
give an instruction must do so on the record, stating distinctly the matter objected to
4. The circuit court noted in its memorandum opinion:
As the jury made no determination as to what the underlying
tort was, the court is not going to assume what it is. That said,
the court does consider the fact that the jury awarded the exact
amount of Huether’s shipping bill [(i.e., $2,391)] . . . as damages.
Evidence was presented at trial that suggested Mihm and Radloff conspired
against Huether to inflate the shipping costs of the heifers. Thus, the jury
could have found that the underlying tort for the civil conspiracy claim was
something other than Bisson’s conduct.
-12-
#26784
and the grounds of the objection.” SDCL 15-6-51(c)(1) (emphasis added); see also
Duda v. Phatty McGees, Inc., 2008 S.D. 115, ¶ 27, 758 N.W.2d 754, 762 (“An
attorney must be clear when objecting to jury instructions ‘so the trial court is
advised of what possible errors exist and be granted the opportunity to correct any
instructions.’” (quoting Parker v. Casa Del Rey-Rapid City, Inc., 2002 S.D. 29, ¶ 15,
641 N.W.2d 112, 118) (internal quotation marks omitted)). “The complaining party
must have properly objected to the instruction in order to preserve the issue on
appeal, or the improper instruction becomes the law of the case.” Knudson v. Hess,
1996 S.D. 137, ¶ 11, 556 N.W.2d 73, 77 (quoting Wallahan v. Black Hills Elec.
Coop., 523 N.W.2d 417, 419-20 (S.D. 1994)).
[¶22.] Huether objected to the form of the special interrogatories, but his
objections were insufficient and non-specific to the problem he now faces on appeal.
In fact, in ruling on Huether’s objection to special interrogatory no. 4, the circuit
court specifically addressed the problem he now faces on appeal. The court stated:
The [c]ourt has not found as a matter of law that [Bisson’s]
fraud and deceit which was the basis of the underlying tort of
any conspiracy between Mr. Bisson and the defendants, and I
would hold you to your responsibility to establish that
underlying tort in this trial.
If that underlying tort is established, then there would be—then
the civil conspiracy claim will survive and damages can be
awarded as an element of civil conspiracy. It is required that
damages be proven as they connect to the underlying tort.
The circuit court gave Huether the opportunity to request a specific jury instruction
or special interrogatory to ascertain Bisson’s participation in the civil conspiracy or
whether his fraud and deceit was the underlying tort. Huether failed to request
-13-
#26784
such an instruction or interrogatory. Therefore, Huether waived the issue on
appeal.
[¶23.] Huether’s failure to request jury instructions or special interrogatories
does not necessarily mean the jury instructions were legally insufficient. Jury
instructions “must be considered as a whole” and must “correctly state the
applicable law.” Dunes Hospitality, L.L.C. v. Country Kitchen Int’l, Inc., 2001 S.D.
36, ¶ 7, 623 N.W.2d 484, 487-88 (quoting Isaac, 522 N.W.2d at 759). We afford the
jury’s verdict a presumption of validity. See State v. Moschell, 2004 S.D. 35, ¶ 40,
677 N.W.2d 551, 564 (“We will set aside a jury verdict only when the evidence and
the reasonable inferences from it fail to sustain any rational theory [supporting the
verdict].”).
[¶24.] In this case, the jury was properly instructed on the law of fraudulent
misrepresentation and deceit and the elements of civil conspiracy. The jury’s
verdict reflects that the jury found an underlying tort, Mihm and Radloff conspired
together to commit that tort, and Huether suffered a total of $2,391 in actual
damages as a result. We will not substitute our judgment for that of the jury. City
of Bridgewater v. Morris, Inc., 1999 S.D. 64, ¶ 5, 594 N.W.2d 712, 715 (citing
Westover v. East River Elec. Power, 488 N.W.2d 892, 896 (S.D. 1992)). The circuit
court had the parties submit requested judgments in accordance with the jury’s
verdict. The circuit court ruled that the link between Bisson and the remaining
Defendants was not established, and the jury’s verdict was not deficient. We
conclude that the circuit court properly instructed the jury and did not misapply the
law in this case. We further conclude that the circuit court correctly held Mihm and
-14-
#26784
Radloff jointly and severally liable on the $2,391 in actual damages as found by the
jury.
[¶25.] 2. Whether the circuit court erred by not holding Bisson, Mihm, and
Radloff jointly and severally liable for the punitive damages
awarded to Huether in summary judgment against Bisson.
[¶26.] Huether next contends that the circuit court erred in not holding
Bisson, Mihm, and Radloff jointly and severally liable on the $1,000,000 punitive
damage award that arose from the summary judgment proceeding against Bisson.
Issue 2 follows the same trajectory as issue 1. The jury did not find, and was not
asked or instructed to find, whether Bisson’s tortious conduct was the underlying
tort for the civil conspiracy claim. In addition, the jury did not find that Bisson was
a member of the civil conspiracy. The onus to request jury instructions reflecting
Huether’s theory of the case fell on Huether, Kelley, 513 N.W.2d at 108, and he
failed to request such instructions. Therefore, we affirm the circuit court’s ruling
refusing to impose joint and several liability on the punitive damages award.
[¶27.] 3. Whether the circuit court erred in denying Huether’s motion for
judgment as a matter of law against Spartz.
[¶28.] At the close of Huether’s presentation of the evidence, and again before
settling jury instructions, Huether moved for judgment as a matter of law against
Defendants, including Spartz. The circuit court rejected Huether’s motion,
explaining there were factual issues that the jury needed to decide. Huether argues
that the circuit court erred because there were no factual issues in dispute, and
Huether proved every element of civil conspiracy against Spartz.
[¶29.] Judgment as a matter of law is proper when “there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that
-15-
#26784
issue[.]” SDCL 15-6-50(a)(1). As stated above, to make out a prima facie case for
civil conspiracy, the plaintiff must prove: “(1) two or more persons; (2) an object to
be accomplished; (3) a meeting of the minds on the object or course of action to be
taken; (4) the commission of one or more unlawful overt acts; and (5) damages as
the proximate result of the conspiracy.” In re TMJ Implants, 113 F.3d at 1498.
Spartz had a long-standing business relationship with Bisson. Spartz admitted at
trial that he lied to Huether and the State’s investigator at Bisson’s request. Spartz
lied about the origin of the heifers and thought the lies were “no big thing.” He
testified that Bisson did not tell him why he should lie or to whom he should lie to.
Spartz further testified that Bisson did not tell him what the objective was for the
lie. Bisson did not tell Spartz about Huether, the State investigator, or anything
about the quarantine. By Spartz’s own testimony, he admitted (1) there were two
or more people (Spartz and Bisson) and (4) the commission of an unlawful act (lying
about the origin of the cattle). However, the circuit court felt that there were
factual questions as to the object to be accomplished, whether there was a meeting
of the minds on the object or course of action to be taken, and whether damages
were a proximate result. “[T]he question is not whether this Court would have
made the same findings the circuit court did, but whether on the entire evidence,
we are left with a definite and firm conviction that a mistake has been committed.”
Hubbard v. City of Pierre, 2010 S.D. 55, ¶ 26, 784 N.W.2d 499, 511 (quoting
Wangsness v. Builders Cashway, Inc., 2010 S.D. 14, ¶ 9, 779 N.W.2d 136, 140
(internal quotation marks omitted)).
-16-
#26784
[¶30.] Spartz argues that based on his testimony, a reasonable jury could find
that he did not have the requisite knowledge and intent required to be held liable to
Huether on the civil conspiracy claim. Spartz asserts that admitting to a lie is not
enough to hold him liable for civil conspiracy. Indeed, the jury found that Spartz
was not part of a civil conspiracy against Huether. “We view the evidence in the
light most favorable to the verdict.” Bertelsen, 2013 S.D. 44, ¶ 16, 833 N.W.2d at
554 (quoting Jacobs, 2011 S.D. 68, ¶ 9, 806 N.W.2d at 212) (internal quotation
marks omitted). “[T]his Court will not usurp the jury’s function in resolving
conflicts in the evidence, weighing credibility, and sorting out the truth.” State v.
Dowty, 2013 S.D. 72, ¶ 15, 838 N.W.2d 820, 825 (quoting State v. Swan, 2008 S.D.
58, ¶ 9, 753 N.W.2d 418, 420) (internal quotation marks omitted). Based on our
review, we cannot firmly say that the circuit court abused its discretion in denying
Huether’s motion for judgment as a matter of law against Spartz. There were
underlying factual questions concerning the elements of Huether’s civil conspiracy
claim that the jury needed to address, especially with regards to “(2) an object to be
accomplished; (3) a meeting of the minds on the object or course of action to be
taken; . . . and (5) damages as the proximate result of the conspiracy.” In re TMJ
Implants, 113 F.3d at 1498. Therefore, we affirm the circuit court’s denial and
uphold the jury’s verdict.
[¶31.] We affirm.
[¶32.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.
-17-