Gantvoort v. Ranschau, #29265

CourtSupreme Court of South Dakota
Writing for the CourtKERN, Justice
Citation973 N.W.2d 225
Parties Doug GANTVOORT, Plaintiff and Appellant, and Dorothy Jean Novak, Plaintiff, v. Mary Ann RANSCHAU, Defendant, and David R. Strait and David R. Strait, P.C., Defendants and Appellees.
Docket Number#29265
Decision Date06 April 2022

973 N.W.2d 225

Doug GANTVOORT, Plaintiff and Appellant,
and
Dorothy Jean Novak, Plaintiff,
v.
Mary Ann RANSCHAU, Defendant,
and
David R. Strait and David R. Strait, P.C., Defendants and Appellees.

#29265

Supreme Court of South Dakota.

ARGUED NOVEMBER 17, 2020
OPINION FILED April 6, 2022
Rehearing Denied May 18, 2022


ROBERT D. TRZYNKA of Hovland, Rasmus, Brendtro & Trzynka, Prof. LLC, Sioux Falls, South Dakota, NANCY J. TURBAK BERRY, SEAMUS W. CULHANE of Turbak Law Office, P.C., Watertown, South Dakota, Attorneys for plaintiff and appellant.

JASON R. SUTTON, THOMAS J. WELK of Boyce Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees.

KERN, Justice

¶1.] Doug Gantvoort (Doug) sued his former wife, Mary Ranschau (Mary), and her attorney, David Strait (Strait), after Mary placed a hidden recording device in Doug's office during their tumultuous divorce. Strait accepted fifty-one recordings that Mary made of Doug, saved them onto his computers, and attempted to introduce two of them into evidence during the divorce trial. One of the recordings captured Doug's comments while viewing pornography. In another, he discussed his net worth and expressed love for his mistress. Doug brought claims against Strait asserting he intentionally invaded Doug's privacy, aided and abetted Mary in her invasion of his privacy, and, by this conduct, engaged in a civil conspiracy with Mary. The circuit court granted summary judgment in favor of Strait on all counts.1 We reverse the entry of summary judgment on Doug's claim against Strait in Count 2 for aiding

[973 N.W.2d 229

and abetting, but we affirm the entry of summary judgment as to Counts 1 and 3.

Factual and Procedural Background

¶2.] Doug and Mary married in 1996. During the course of their marriage, they owned and operated a specialty restoration business in Clear Lake, South Dakota, refurbishing antique tractors and vehicles. Mary worked as the sole employee of the business following a motorcycle accident Doug had in 2006. Sometime in late 2014, Mary began to suspect that Doug was having an affair. Mary sought advice from private investigators about how to conduct electronic surveillance of Doug. Thereafter, Mary purchased a voice-activated audio recording device and hid it in the windowsill of Doug's office.2 On November 30, 2014, Mary began recording Doug at times when she knew he would be in the office. She would place the recording device in the room and return later to collect it and listen to the recordings.3 Mary made a total of fifty-one recordings.

[¶3.] Because Doug and Mary restored large antique items, the couples’ business consisted mostly of an open shop area with a small, enclosed office area. The shop area had one large door which was used most often. The office area had two doors, one leading into the shop and another allowing outside access. The door leading into the shop did not have a lock, but the outside door did have a lock to which Mary had a key. The office also had windows, a desk, a computer, and other office equipment. The windows had cardboard on the inside preventing people from seeing into the office. Doug frequently spent late evenings, and occasionally, he spent nights in the office as it also had kitchen appliances, a restroom, and shower facilities. Although Mary testified at her deposition that the office was Doug's "man cave, kind of," she also testified that it was "not a man cave. It's our office. It's the shop. It's been a long time since it's been really opened up to the public, but yet we still have a lot of people come in ... and they'll walk around." (Emphasis added.)

[¶4.] Mary's recordings consisted mostly of Doug's side of telephone conversations occurring late at night, some of which allegedly involved his mistress, but one of the recordings captured the sound of Doug masturbating while he viewed pornography in his office. After reviewing the first few recordings, Mary believed Doug's conversations confirmed her suspicions that Doug was having an affair because he was

[973 N.W.2d 230

"setting up trips for weekends" with a woman and spoke about building a house for her. Mary contacted attorney Strait about filing for divorce.

¶5.] On December 3, 2014, Mary and Strait met for the first time in Strait's office. Mary retained Strait to file a divorce action against Doug. During this initial consultation, Mary gave Strait her first recording from Doug's office and explained how she captured the recordings. At the behest of Mary and for preservation purposes, Strait directed his staff to download a copy of the recording to his computer system and then copy the content onto a compact disc for Mary to take with her. This practice continued several times per week over the course of the next two months. Strait's billing statements itemized the time his staff spent transferring Mary's recordings.

[¶6.] The parties dispute whether Strait told Mary during the December 3 consultation that she should stop recording Doug. Strait testified in his deposition that he told her not to record Doug for several reasons. He contends he advised Mary that recording another person without being personally present could amount to criminal conduct; that judges do not like secret recordings whether legal or not; that evidence of an affair was not the primary issue in the divorce, and that if she recorded someone other than Doug, it could lead to problems for her including the inadvertent capturing of privileged conversations between Doug and his attorney.4

[¶7.] In contrast, Mary testified that Strait did not advise her until January 2015 that she should not be recording Doug's conversations. Mary claims that she did not know it was illegal to record Doug and that Strait did not tell her that it was unlawful. She did acknowledge that Strait told her that any evidence of Doug's affair would not determine the outcome of the legal issues in the divorce. Strait's notes from his initial consultation with Mary on December 3 confirm the discussion about the recordings but are silent as to whether he advised Mary to stop recording Doug.

[¶8.] Because Mary would drop off the recordings with Strait's staff, Strait did not personally accept the recordings Mary brought to his office. Strait's paralegal, however, sent him inter-office memorandums notifying him when Mary dropped off recordings, which summarized the information received from her.5 For example, Mary dropped off recordings on January 12, 2015. Strait's paralegal sent him an inter-office memo that day indicating that she needed Mary's "permission to delete the files on the recorder so she can use it again." The memo also noted that: "[Mary] said Doug is getting an attorney now. She'll know soon who it is." Strait's paralegal stopped sending the memos sometime after January 12 because she received no feedback from Strait.

[¶9.] Strait considered the recordings to be evidence that he had a duty to preserve, even though he testified that, for the most part, he thought the recordings were irrelevant to Mary's divorce action. Prior to trial, Mary prepared a handwritten note describing the contents of the recordings that she wanted to introduce at trial and

[973 N.W.2d 231

urged Strait to use those portions of the recordings in the divorce proceedings. When explaining why she wanted the recordings offered into evidence, Mary said she "wanted Doug to know the truth, that I know that he was having an affair, and that's all." Strait testified in his deposition that Mary became angry after Strait refused to reference the recordings in court documents in preparation for a February 27, 2015 hearing.

¶10.] The parties proceeded in the divorce action on May 5–7, 2015. During the trial, Strait attempted to introduce two of the recordings made by Mary on December 17 and 18, 2014. Although the recordings totaled seven hours, Strait sought admission of only excerpts from each recording.6 The circuit court sustained an objection to the admission of the recordings concluding that they were made in violation of SDCL 23A-35A-20. Thereafter, Strait laid further foundation and again moved to admit the tapes into evidence. The court again denied the motion.

[¶11.] Strait then marked the two tapes as exhibits 101 and 102 and made an offer of proof informing the court that the recordings contained Doug's statements, made presumably to his mistress, that (1) "what you did to me the other night was the greatest sexual experience of my life" and (2) "I didn't think she would do it this fast, I am exposed, may cost me a couple hundred thousand dollars, reality is I'm worth a couple of million .... I love you and I'm going to say we're friends, nobody would have sex with somebody that has prostrate [sic] issues, it's not good for the prosecution." The circuit court did not receive the exhibits, and they were not played at trial. At the close of the evidence, the court took the case under advisement. The circuit court issued a memorandum decision on June 2, 2015, followed by a decree of divorce on June 16, 2015.7

[¶12.] Almost three years later, on January 18, 2018, Doug brought an action against Mary and Strait alleging: (1) invasion of privacy, (2) aiding and abetting invasion of privacy, and (3) civil conspiracy.8 Mary and Strait each filed motions for summary judgment. Strait argued that his actions did not invade Doug's privacy because...

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