Jones v. Swanson
| Citation | 341 F.3d 723 |
| Decision Date | 03 September 2003 |
| Docket Number | No. 02-2857.,02-2857. |
| Parties | Richard M. JONES, Plaintiff-Appellee, v. Todd V. SWANSON, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Eric J. Magnuson, argued, Minneapolis, MN (Peter Gray, Minneapolis, MN, A. Russell Janklow and Judith K. Gundewaldt of Sioux Falls, SD, on the brief), for appellant.
Robert A. Christenson, argued, Sioux Falls, SD (Robert J. Burns, Sioux Falls, SD, on the brief), for appellee.
Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1 District Judge.
A jury awarded Richard M. Jones $450,000 in compensatory damages and $500,000 in punitive damages against Todd V. Swanson in this diversity action for alienation of affection. Todd appeals the district court's denial of his motions for new trial and judgment as a matter of law. We affirm conditioned on Richard's acceptance of a remittitur order on the verdict.
Donna Jones and Todd Swanson grew up a small rural South Dakota community. They became romantically involved for a short time in 1977 upon Donna graduating from high school. They rekindled the romance in 1978 and again dated for a short time. The relationship ended in 1978, and the two did not see one another for twenty years until 1998.
In the interim, Todd became an orthopaedic surgeon and moved to Las Vegas, Nevada. He married and raised a family. Donna met Richard Jones shortly after the relationship with Todd ended and was married to him in 1981. Donna and Richard have four children and settled in Sioux Falls, South Dakota. Richard worked as a hospital administrator at Sioux Valley Hospital where Donna also worked as a nurse.
By 1998, Donna believed she and Richard were no longer close. Donna confided to friends she was dissatisfied with her job and marriage. While she described her marriage at the trial as being "near perfect," she admitted telling friends she "loved Richard as the father of her children but not as a woman loves a man." In the months leading up to September 1998, Donna took to drinking with friends and staying out late. On one occasion in August 1998, she attended a party at a friend's house without Richard. Donna drank heavily and become very intoxicated. In the course of the evening she met Ted Ries, and in her intoxicated state became somewhat enamored of him. The two exchanged a few kisses and eventually ended up in bed together. Donna testified she awoke the next morning partially dressed and in bed with Ries, who was naked. Neither Ries or Donna could remember exactly how they ended up in bed together, but both indicated they did not believe they had engaged in intercourse. Ries testified they "fooled around" after going to bed and described Donna as flirtatious, overly friendly and said she did not act like a married woman. Donna returned home early the following morning and told Richard she had stayed at her friend's home because she drank too much and did not want to drive. She did not tell Richard about the encounter with Ries.
Donna contacted Ries twice following the incident. The first time, about a week later, Donna called Ries and asked him out for a drink. Ries declined, having discovered Donna was married. Donna testified she called Ries to find out exactly what had happened. Donna called Ries again about six months later, asked him out for a drink, and told him his name might come up in her upcoming divorce proceeding. It was against this backdrop that Donna and Todd met again and rekindled their previous relationship.2
On September 23, 1998, Todd's father suffered a heart attack and was taken to Sioux Valley hospital. Todd's family came to the hospital and by chance Donna noticed them in the ER and stopped to visit. The next day, Donna visited the family again and ran into Todd who had arrived overnight. The two struck up a conversation, and Donna mentioned she was having a birthday the next day. Todd asked if he could buy her lunch and Donna agreed. The next day Donna and Todd met at a restaurant. Todd presented her with a birthday card and informed the waiter it was Donna's birthday. Todd also made arrangements for a special birthday dessert. Todd testified Donna talked about her dissatisfaction with her job and marriage during lunch. In particular, she complained she was not getting as much sex from her husband as she wanted. Todd also testified Donna rubbed her leg against his during lunch.
After lunch, Donna and Todd took a walk in a nearby park. As they walked, Todd put his arm around Donna. When they sat down on a bench, Todd put his hand on her knee. Donna again voiced her dissatisfaction with her marriage, saying she "loved Richard as the father of her children but not as a woman loves a man." Donna invited Todd to kiss her and they kissed several times. Todd remarked he had made a "huge mistake" letting Donna go twenty years earlier, and Donna told Todd she had always loved him.
Todd returned to Las Vegas but about a week later the two spoke over the telephone. There was conflicting evidence at trial as to who placed the first call; both said the other called, but it is undisputed over the next several weeks Todd and Donna spoke hundreds of times.3 Both expressed their love and affection for the other during the many calls and, among other things, they talked about meeting somewhere. Todd told Donna he was planning to attend a meeting in San Francisco and asked if she could meet him. Donna agreed and made the necessary arrangements, including paying for her own plane ticket. Donna told Richard she was going to meet a college friend.
Before leaving for San Francisco, Todd sent Donna a CD and told her to listen to a song entitled "I'll Go On Loving You." When she arrived at the airport, Todd was there to meet her and gave her a bouquet of flowers. They went to a hotel where Donna registered as "Mrs. Donna Swanson." Donna also booked a separate room under her name in case Richard called. Donna, however, stayed the entire weekend with Todd in his room. Over the course of the weekend, Todd bought Donna a number of gifts and also took her to some of the meetings he attended. At one of the meetings, Donna met Wolfgang Schweizer, the president of Plus Orthopedics. Schweizer and Donna discussed the possibility of her becoming a sales representative for Plus Orthopedics and invited her to visit the company's European headquarters in December.
After San Francisco, Donna and Todd went back to exchanging telephone calls, cards and gifts. During their calls they talked about leaving their respective spouses and making a life together, including where they would live and how their children would react. Among other things, Todd promised Donna a "Brady Bunch" family and future. In cards to Donna, Todd told her how much he cared for and loved her and how much he looked forward to being with her again. He also expressed concern and guilt over the affair. "I love our closeness, but I am still very concerned about you and your kids, and continue to have feelings of guilt toward both our spouses." And,
In early November, at Todd's request, Donna met with a counselor to discuss divorce and how it would affect her children. The counselor testified Donna felt Richard was not meeting her emotional and physical needs and she was unhappy and confused. The counselor also testified he believed Donna was already on her way out of the marriage.
At about this time, Donna told Richard she had been invited to Europe by Plus Orthopedics to explore the possibility of future employment.4 In mid-November, she told Richard she was contemplating divorce. Donna denied any involvement with another man and told Richard she was not sure she loved him anymore.
Days later, Donna's sister-in-law and nephew were killed in a car accident. Todd, who was in Sioux Falls for Thanksgiving, attended the funeral. It was then Richard began to suspect something between Todd and Donna. After the funeral, Richard had to leave town and Donna invited Todd to spend the night at her home. Todd accepted. The two also spent one or more nights at Todd's hotel. A few days later, Donna admitted to Richard she was having an affair with Todd and they were planning to travel to Europe together. Before returning to Las Vegas, Todd and Donna met jointly with a counselor to discuss the ongoing relationship and concerns they had about their children.
In December 1998, Donna and Todd went to Europe as planned. The trip lasted 10 days and Todd and Donna stayed together each night. Plus Orthopedics paid for Donna's travel expenses but Todd paid for everything else. While in Switzerland, Donna and Todd visited a Swiss bank to discuss opening an account so Todd could hide some of his money prior to his anticipated divorce.
After their European vacation Todd and Donna began joint and individual counseling sessions to prepare for what lay ahead. In January, Donna moved out of the family home. Todd had encouraged her to get her own place so he could call whenever he wanted. After she moved out, Donna and Todd continued to talk and correspond. In January, she traveled to California to meet him at a medical convention where they spent two days and nights together. It was there, for the first time, Todd suggested ending the affair.
Todd testified he began having doubts about the affair and suggested they reconcile with their spouses. Todd testified he told Donna that Richard was a good man and father, and she needed to work on her marriage because their relationship was not going to work out. Todd's, emotions, however, proved fickle. He later sent Donna a Valentine's Day card telling her how much he loved her. And still later that month, when Donna showed up unexpectedly at a...
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