Cedar v. Johnson, #28441

• Decision Date: 28 November 2018
• Docket Number: #28453,#28441
• Citation: 2018 S.D. 80
• Parties: JERRY W. CEDAR, Plaintiff and Appellant, v. BRUCE JOHNSON, Defendant and Appellee.
• Court: South Dakota Supreme Court

2018 S.D. 80

JERRY W. CEDAR, Plaintiff and Appellant, v. BRUCE JOHNSON, Defendant and Appellee.

#28441

#28453

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

ARGUED ON OCTOBER 2, 2018

November 28, 2018

#28441, #28453-aff in pt & rev in pt-SRJ

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA

THE HONORABLE RICHARD A. SOMMERS Judge

ROBERT A. CHRISTENSON

Sioux Falls, South Dakota

Attorney for plaintiff

and appellant.

THOMAS J. COGLEY of

Ronayne and Cogley, P.C.

Aberdeen, South Dakota

Attorneys for defendant

and appellee.

JENSEN, Justice

[¶1.] Jerry Cedar (Cedar) brought an action for alienation of affections against Bruce Johnson for causing the end of Cedar's marriage to Leslie Cedar (Leslie). At the close of Cedar's case-in-chief at trial, Johnson moved for judgment as a matter of law. The court granted the motion determining that Cedar failed to present evidence of his damages. Cedar appealed the dismissal of the action. Johnson filed a notice of review, arguing the circuit court erred in denying his other grounds for dismissal as a matter of law. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[¶2.] Cedar and Leslie were married in Kansas in 2000. Early in the marriage the couple conceived their only child, N.C. In 2006, the family moved to Wisconsin to help care for Leslie's father. In 2007, Leslie began an online relationship over Facebook. Cedar discovered the relationship, and the couple briefly attended couple's counseling to rehabilitate their marriage.

[¶3.] The couple moved to Frederick, South Dakota in September 2014. In April 2015, Leslie began working at the Titan Bar, a local restaurant owned by Johnson. Johnson had recently purchased the restaurant after moving to Frederick. Cedar occasionally worked for Johnson in the evenings as a cook. All the parties agree that the relationship between Johnson and Leslie was initially purely professional.

[¶4.] Johnson lost his wife to cancer around May 2015. Cedar testified that at some point thereafter, Johnson and Leslie began frequently texting one anotherduring non-work hours. Cedar also testified that Johnson started paying special attention to Leslie and seemed eager to be around her. Cedar presented evidence that Johnson would bring Leslie coffee, donuts, soda, and gave her gifts. Cedar testified that he noticed that Leslie's affections for him began to change in August or September of 2015.

[¶5.] Johnson testified that he initially had no romantic interest in Leslie, but began to develop feelings for her in the fall of 2015. Johnson and Leslie both testified that they did not express romantic feelings toward one another until late September 2015. Johnson and Leslie both testified that their relationship did not become sexual until November 2015 when they had sexual relations once in Johnson's restaurant office and once at his home. Johnson testified that he was initially hesitant to start a relationship with Leslie because she was married, but felt more comfortable doing so after learning Leslie felt no attachment to Cedar and considered her marriage to be over.

[¶6.] Leslie told Cedar about her relationship with Johnson in November 2015. Cedar testified that Leslie told him at this time "that he (Johnson) worked his charm on her . . . and she fell for it." Cedar claimed that he told Leslie that he was willing to try to work things out if she would stop seeing Johnson and quit her job at the restaurant. Instead, Leslie moved out of the home on November 20, 2015, and moved in with Johnson. In April 2016, Cedar filed for divorce which was finalized on June 26, 2016.

[¶7.] On February 4, 2016, Cedar filed this action for alienation of affections against Johnson seeking compensatory and punitive damages. After Cedar filed thelawsuit, Leslie claimed that she also had a sexual relationship with another man, Archibald "Junior" Linthorne for approximately two weeks in September 2015. Leslie testified this was before her relationship with Johnson started.

[¶8.] During those two weeks, Leslie testified she had sex with Junior twice, once at his home and once in an abandoned farmhouse in Frederick.¹ Johnson testified that he was unaware of the relationship between Leslie and Junior until approximately December 2015. Cedar testified that he did not believe that a sexual relationship occurred between Leslie and Junior. He claimed that Johnson and Leslie had fabricated the story with Junior to help Johnson's case. Cedar testified that he visited the abandoned farm house in 2016 after he learned of the alleged affair. During this visit, Cedar took pictures of the farm house showing it was difficult to enter and that the house was locked to prevent entry.

[¶9.] On December 19, 2016, Johnson filed a motion for summary judgment arguing that no genuine issue of material fact existed to show that Johnson caused the alienation of Leslie's affections toward Cedar. The court denied the motion. Less than a week before trial, Johnson filed a motion to dismiss or in the alternative a motion for summary judgment. In this motion, Johnson argued that the caseshould be dismissed because the claim for alienation of affections violated public policy and renewed the original basis for summary judgment.

[¶10.] A jury trial commenced on September 28, 2017. Cedar presented testimony from himself, Johnson, and Leslie. During his testimony, Cedar expressed that he and Leslie were loving and affectionate toward one another until Leslie's relationship with Johnson started. Cedar presented Facebook messages from Leslie and a photo from 2014 in support of his testimony. Cedar also presented evidence that on their fifteenth wedding anniversary in August 2015, Leslie posted a Facebook message with a picture of a ring stating that she would like an anniversary ring for their 20th anniversary. Cedar also presented an August 2015 Facebook message from Leslie stating, "[fifteenth] Anniversary to Jc...did ya think we would make it this far lol??? Here's to the next [fifteen]!!!." Cedar also testified that he and Leslie continued to be physically intimate, that they spent time together, and that they told one another they "loved each other" every night before falling to sleep. Leslie acknowledged she and Cedar occasionally had sex, but that she felt no feelings or affection toward Cedar since at least 2011. Leslie testified that she only intended to stay with Cedar until N.C. turned eighteen. She described the relationship between her and Cedar to be more like roommates than a marriage.

[¶11.] Cedar was asked during his testimony about the effect Leslie's separation had upon him. Cedar expressed that he missed being married to Leslie "every day and every night." He explained that he missed her love and affection, seeing her smile in the morning, and hearing her tell him she loved him everynight. Cedar also discussed the things they did together during the marriage, such as raising livestock and taking trips. Cedar explained that he had been "emotional" ever since he learned of her affair with Johnson and that losing Leslie had put him and their son "through heck." Cedar also testified that he regretted having to raise N.C. in a broken home. Cedar did not claim any pecuniary loss or testify to a specific dollar amount of damages.

[¶12.] At the conclusion of Cedar's evidence, Johnson moved for judgment as a matter of law on several grounds. The circuit court granted the motion on the question of damages reasoning that Cedar had failed to provide testimony as to the amount of his damages. The court denied the other grounds for dismissal asserted by Johnson. On October 4, 2017, the court entered an order dismissing the claim for alienation of affections.

[¶13.] Cedar filed a notice of appeal and, by way of notice of review, Johnson requested review of the circuit court's denial of his other grounds for dismissal as a matter of law. The parties' briefs raise the following issues:

1. Whether the circuit court erred by determining as a matter of law that Cedar failed to present sufficient evidence as to the amount of his damages.

2. Whether the circuit court erred in not granting Johnson's motion for judgment as a matter of law on liability and causation.

3. Whether SDCL 20-9-7 violates public policy.

Standard of Review

[¶14.] Whether judgment as a matter of law was warranted is reviewed de novo. Center of Life Church v. Nelson, 2018 S.D. 42, ¶ 18, 913 N.W.2d 105, 110. Forour review, "we view the evidence in the light most favorable to the verdict or to the nonmoving party[,]" then we determine whether the evidence supports the motion, without assessing the validity of the evidence. Id. (citations omitted). "If sufficient evidence exists so that reasonable minds could differ, judgment as a matter of law is not appropriate." Id.

Analysis & Decision

1. Whether the circuit court erred by determining as a matter of law that Cedar failed to present sufficient evidence of the amount of his damages.

[¶15.] The tort for alienation of affection emanates from SDCL 20-9-7. "The gravamen of an action for alienation of affections is enticement." Rumpca v. Brenner, 2012 S.D. 33, ¶ 7, 814 N.W.2d 128, 129 (quoting Pankratz v. Miller, 401 N.W.2d 543, 549 (S.D. 1987)). "[T]he rights of personal relation forbid the enticement of a wife from her husband[.]" Id. (quoting SDCL 20-9-7(2)). We have consistently held three elements must be proven to show alienation of affections:

1. Wrongful conduct of 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 conduct and loss.

Id., 814 N.W.2d at 129-30.

[¶16.] On the question of recoverable damages for alienation of affections, we have previously stated,

The plaintiff . . . may recover for all direct and proximate losses occasioned by the tort, including loss of love and

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