Kjerstad v. Ravellette Publications, Inc., s. 18124

• Citation: 517 N.W.2d 419
• Decision Date: 02 September 1993
• Docket Number: 18134,Nos. 18124,s. 18124
• Parties: Lisa (Whitis) KJERSTAD, Deb Tireman and Taunia Hindman, Plaintiffs and Appellees, v. RAVELLETTE PUBLICATIONS, INC., d/b/a Pennington County Courant, Defendant, and Les Ravellette, Defendant and Appellant. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 419

517 N.W.2d 419

Lisa (Whitis) KJERSTAD, Deb Tireman and Taunia Hindman, Plaintiffs and Appellees, v. RAVELLETTE PUBLICATIONS, INC., d/b/a Pennington County

Courant, Defendant,

and

Les Ravellette, Defendant and Appellant.

Nos. 18124, 18134.

Supreme Court of South Dakota.

Considered on Briefs Sept. 2, 1993.

Decided April 20, 1994.

Rehearing Denied May 24, 1994.

Mark F. Marshall, Michael M. Hickey, Patrick Duffy of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiffs and appellees.

Rick Johnson of Johnson, Eklund, Nicholson, Dougherty & Abourezk, Gregory, for defendant and appellant.

BRADSHAW, Circuit Judge.

Defendant Les Ravellette (Ravellette) appeals a jury verdict which resulted in a judgment for the plaintiffs on an invasion of the right to privacy claim. Plaintiffs Lisa Kjerstad (Kjerstad), Deb Tireman (Tireman), and Taunia Hindman (Hindman) appeal by notice of review the granting of a directed verdict against their claim of intentional infliction of emotional distress.

FACTS

Ravellette Publications, Inc., publishes the Pennington County Courant, a weekly newspaper, in Wall, South Dakota. At the commencement of this action, Ravellette owned 70% of Ravellette Publications, Inc. and managed the publication of the newspaper. Kjerstad, Tireman, and Hindman all worked for the paper in different capacities in 1989.

Adjacent to the only restroom at the employment location was a vacant room where Ravellette stored sheetrock and other construction materials that were being used for renovations to the building. In April of 1989, Tireman noticed light emanating from a small hole in the restroom wall which she described as a flickering light. At that same time, she also heard footsteps on the other side of the wall. In August 1989, Tireman again noticed the flickering light which was also accompanied by footsteps on the other side of the wall. At that time, Tireman questioned Kjerstad whether she had noticed the same flickering light, which she had not. As a result of their curiosity, the two of them then checked out a hole in the wall of the bathroom which was apparently made by a door handle, but saw no light coming through the hole.

On October 11, 1989, Tireman questioned both Kjerstad and Hindman about the light in the bathroom as she was now adamant that there was something suspicious. They investigated the area again and found a corresponding hole in the work area after removing pieces of rubbery caulk from the wall adjacent to the restroom. The hole in the wall was underneath a piece of pegboard which was leaning against the wall. When the three women inspected the hole, they found that a person could see directly to the toilet. Tireman confirmed that the same flickering light that she had seen earlier was detected in the bathroom when the caulking was removed.

To verify their suspicions that their employer, Ravellette, was actually spying on them, they attempted to catch him in the act. On October 19, 1989, while Kjerstad was using the restroom, Hindman went outside the building to a small window that looked into the work area. Hindman observed Ravellette apparently looking into the restroom through the hole in the wall from the vacant work area. Kjerstad saw a flickering light and heard the footsteps on the other side of the wall while she used the restroom at this time.

Tireman, Kjerstad and Hindman stayed at Ravellette Publications for one week after this incident out of a sense of obligation to finish the current edition of the paper which they had started. They quit their jobs on October 25, 1989. The next day they filed sexual discrimination claims with the South Dakota Division of Human Rights. On January 7, 1991, the Commission of Human Rights accepted a Conciliation Agreement between the parties. ¹ Ravellette was required to write a letter of apology to the plaintiffs as part of the agreement.

There was testimony demonstrating that all three women suffered physical symptoms as a result of their experiences with Ravellette. Each of the women saw a Dr. Hayes, who was deceased at the time of trial, after they had discovered that Ravellette had been watching them in the restroom. Tireman and Kjerstad also saw a social worker as a result of the incidents at the work place. Hindman testified that she vomited after she saw Ravellette observe Kjerstad in the restroom. She later had physical problems with diarrhea, headaches, and stomach sickness. Kjerstad testified that she had difficulty sleeping and had nightmares. Tireman testified that she had headaches and was physically nervous when she was alone with Ravellette.

The plaintiffs commenced the present action claiming an intentional infliction of emotional distress. They were allowed to amend their complaint one day before the trial was to begin to include the tort claim of invasion of privacy. At the close of all the evidence, the trial court granted Ravellette a directed verdict on the intentional infliction of emotional distress claim. Thereafter, the jury awarded $500.00 to Kjerstad and Tireman and $200.00 to Hindman in actual damages and all three plaintiffs were awarded $21,000.00 in punitive damages.

ISSUES

Ravellette appeals to this Court and raises six issues:

I. Did the trial court err when it determined this action was not barred through the Conciliation Agreement by the doctrine of res judicata?

II. Did the trial court abuse its discretion by granting plaintiffs' motion for leave to amend their complaint?

III. Did the trial court err when it allowed the invasion of the right of privacy claim to go to the jury?

IV. Did the trial court err when it failed to hold as a matter of law that the plaintiffs failed to mitigate damages?

V. Did the trial court err in allowing the issue of punitive damages to go to the jury and was there a sufficient level of evidence to sustain a jury award of punitive damages?

VI. Was it reversible error for the trial court to deny defendant's motions for mistrial after plaintiffs' counsel had violated the motions in limine?

Tireman, Kjerstad and Hindman appeal and raise by notice of review one issue:

VII. Did the trial court err when it granted defendant's motion for a directed verdict on plaintiff's intentional infliction of emotional distress claim?

We affirm on issues I through V and reverse and remand on issues VI and VII.

I. RES JUDICATA

Ravellette alleges that the trial court erred when it determined that this action was not barred by the Conciliation Agreement filed with the Department of Human Rights. The doctrine of res judicata will apply to an action subsequent to a determination of an administrative body only when the claim was within the agency's jurisdiction and the claim was actually determined by the agency. Johnson v. Kolman, 412 N.W.2d 109, 113 (S.D.1987). Neither of these prongs is met in this case. The claims before the circuit court were not within the jurisdiction of the Department of Human Rights.

Administrative agencies have only such adjudicatory jurisdiction as is conferred upon them by statute. Johnson at 112. The South Dakota Human Relations Act confers jurisdiction on the Commission of Human Rights to hear charges of discrimination in the work place. SDCL 20-13. Nowhere in this Act is jurisdiction given to hear either the intentional infliction of emotional distress or the invasion of privacy claims. In fact, these claims were not even raised before the Human Rights Commission, and therefore res judicata has no effect here. See Johnson at 113.

Even if the Commission had jurisdiction, the claims of intentional infliction of emotional distress and invasion of privacy were not made and the agency actually made no determination of any issues. A prior determination of an action is accorded res judicata effect only if a judgment on the merits was rendered. Allan v. Sheesley, 447 N.W.2d 361, 363 (S.D.1989). The Conciliation Agreement itself demonstrates that a decision on the merits was not reached. Paragraph 4 of the Agreement states:

It is understood that this Agreement does not constitute an admission by the Respondent of any violation of the South Dakota Human Relations Act of 1972, SDCL 20-13 or Title VII of the Civil Rights Act of 1964. All parties agree to waive their rights to a formal determination, finding or decision by the Commission on any matters which were or might have been alleged as charges settled by this Agreement. (emphasis added).

Because the Conciliation Agreement does not amount to a formal determination of the charges, a decision on the merits was not reached. We hold that the claims raised in the circuit court action were not barred by the doctrine of res judicata.

II. MOTION TO AMEND COMPLAINT

Ravellette contends that the trial court erred in allowing the plaintiffs to amend their complaint by adding a new cause of action one day before trial. A trial court may permit the amendment of pleadings before, during, and after trial without the adverse party's consent. Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987). SDCL 15-6-15(a) states that "[L]eave [to amend] shall be freely given when justice so requires." A motion to amend is addressed to the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion which results in prejudice to the non-moving party. Id. The record does not reflect that Ravellette has suffered any specific prejudice. Although a new cause of action was added, the two claims contained identical facts and issues. Ravellette has not demonstrated that he was unprepared to meet the contents of the amended complaint or that he has suffered any prejudice as a result thereof. Therefore, we find no clear abuse of discretion in allowing the complaint to be amended.

III. INVASION OF PRIVACY

Ravellette contends that the evidence was insufficient as a matter of law to submit the invasion of privacy claim to the jury. Ravellette made a motion for a directed verdict against...