Leisinger v. Jacobson

• Decision Date: 21 August 2002
• Docket Number: No. 22086.,22086.
• Citation: 651 N.W.2d 693,2002 SD 108
• Parties: Kevin LEISINGER, Plaintiff and Appellee, v. Cheryl D. JACOBSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

651 N.W.2d 693

2002 SD 108

Kevin LEISINGER, Plaintiff and Appellee, v. Cheryl D. JACOBSON, Defendant and Appellant.

No. 22086.

Supreme Court of South Dakota.

Considered on Briefs April 22, 2002.

Decided August 21, 2002.

Wilson Kleibacker and Daniel J. Brown of Lammers, Lammers & Kleibacker, Madison, South Dakota, Attorneys for plaintiff and appellee.

Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for defendant and appellant.

AMUNDSON, Justice.

[¶ 1.] Kevin Leisinger (Kevin), Appellee/Plaintiff, sued his former spouse, Cheryl Jacobson (Cheryl), Appellant/Defendant, for malicious prosecution. A jury awarded Kevin compensatory and punitive damages. Cheryl appeals. We affirm in part, reverse in part and remand.

FACTS

[¶ 2.] This case is a result of what Cheryl describes as an "acrimonious" divorce.¹ After the decision in the divorce proceedings, Kevin sued Cheryl for malicious prosecution based on conduct that occurred during the pendency of the divorce. Evidence at the malicious prosecution jury trial indicated that on March 6, 1997, after Cheryl started divorce proceedings, both parties remained in the marital home and an argument ensued. Kevin testified that he called 911 after Cheryl grabbed something out of his hands and threw it at him. Cheryl testified that Kevin had grabbed for her neck and her necklace broke. Law enforcement arrived and Cheryl, allegedly following advice of divorce counsel who she had called just prior to the arrival of the police, filed a complaint charging Kevin with simple assault. Kevin was arrested and kept in police custody over night. The following day, Cheryl filed for a temporary restraining order. Prosecution later dismissed the charge.

[¶ 3.] Additionally, testimony showed that on March 18, 1997, a hearing was held and a protection order prohibiting physical and verbal contact, as well as harassment and threats, was issued. Despite Cheryl's request for such an order, Kevin claims Cheryl initiated phone contact with him several times. Subsequently, on March 25, 1997, both parties ended up in the same bar in Sioux Falls, South Dakota. Cheryl alleged that Kevin had been watching her, so she called the police. Kevin claimed he was to meet someone there, but upon discovering Cheryl in the bar, he turned around and left. Cheryl called the police and reported the incident. A criminal complaint was filed, but the charge stemming from this event was dismissed.

[¶ 4.] The jury was presented with a series of other complaints filed following the initiation of divorce proceedings. On May 9, 1997, Cheryl filed a complaint after Kevin approached her at the Minnehaha County Courthouse. There were also several charges for violation of the protection order filed when Kevin allegedly placed mail in Cheryl's mailbox and made phone calls to Cheryl. According to Kevin, however, many of the calls were made in an effort to talk to his daughter and Cheryl initiated conversations with him.

[¶ 5.] On June 11, 1997, the protection order was suspended. On July 9, 1997, Cheryl alleged that Kevin approached her in a Sioux Falls restaurant, followed her and their daughter home and stood on the front step yelling and beating on the front door. Kevin was charged with disorderly conduct for these actions, not a violation of the protection order because it was no longer in place. He was later acquitted. In fact, all of the charges at issue in the malicious prosecution lawsuit were either dismissed, or Kevin was found not guilty of committing the criminal act alleged.

[¶ 6.] Kevin testified that during one of the phone conversations between the parties, Cheryl stated that Kevin was to give her the farm, which had been her family's farmstead, and $100,000 in cash for the divorce settlement, or she would have him arrested. He also alleged that Cheryl drove by his work place and approached him at work, and initiated much of the contact that occurred between the two. He further claimed Cheryl orchestrated the protection order, and violations of it, to obtain leverage against him in the divorce. [¶ 7.] On May 23, 2001, a jury entered a judgment in favor of Kevin, awarding him $13,754.67 in compensatory damages and $120,000 in punitive damages. Cheryl appeals the following issues:

1) Whether the trial court should have instructed the jury regarding prosecutorial discretion by the state's attorney.

2) Whether the trial court should have set aside the punitive damage award as unreasonable and excessive.

STANDARD OF REVIEW

[¶ 8.] When addressing whether the trial court erred in its decision on what jury instructions should have been given at the conclusion of the evidentiary phase of trial, we apply the following standard of review:

On issues supported by competent evidence in the record, the trial court should instruct the jury. The trial court is not required to instruct on issues lacking support in the record. Failure to give a requested instruction that correctly sets forth the law is prejudicial error. Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial. The burden of demonstrating prejudice in failure to give proposed instructions is on the party contending error. This Court has repeatedly stated that "[a] trial court must present only those instructions to the jury which are supported by competent evidence and set forth the applicable law."

Parker v. Casa Del Rey-Rapid City, Inc., 2002 SD 29, ¶ 5, 641 N.W.2d 112, 115 (citation omitted).

[¶ 9.] In excessive punitive damages review, we have stated that we consider the following: "[Is] the verdict ... so large as to clearly indicate that it must have been given under the influence of passion or prejudice ... [?]" Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, ¶ 36, 573 N.W.2d 493, 504. We have further said that to overturn the jury verdict on punitive damages, the amount "must be so excessive as to strike mankind, at first blush, as being, beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. In short, the damages must be flagrantly outrageous and extravagant[.]" Flockhart v. Wyant, 467 N.W.2d 473, 479 (S.D.1991). Today, we are not disagreeing with our previous statements, but we clarify this standard of review by adopting the abuse-of-discretion standard, which has been implemented by other courts when reviewing punitive damages awards.²

DECISION

[¶ 10.] 1) Whether the trial court should have instructed the jury regarding prosecutorial discretion by the state's attorney.

[¶ 11.] At trial, Cheryl proposed two instructions, which were rejected by the trial judge. Defendant's proposed instruction number 22 states that "[t]he fact that a criminal charge is dismissed by the prosecutor is not, standing alone, sufficient evidence that probable cause is lacking." Defendant's proposed instruction number 23 says:

You are instructed that if the defendant merely states what is believed, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes independent investigation, the defendant is not regarded as having instigated the proceeding.

In denying these instructions, the trial court held that the court's instructions correctly set forth the law to be applied by the jury in this malicious prosecution case.³

[¶ 12.] The following elements must be proven to establish a claim for malicious prosecution:

(1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceedings; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice; and (6) damages conforming to legal standards resulting to plaintiff.

Kaarup v. St. Paul Fire and Marine Ins. Co., 485 N.W.2d 802, 804 (S.D.1992). Malicious prosecution is a prosecution "begun in malice, without probable cause to believe it can succeed, and which finally ends in failure." Specialty Mills, Inc. v. Citizens State Bank, 1997 SD 7, ¶ 9, 558 N.W.2d 617, 620. See also Manuel v. Wilka, 2000 SD 61, ¶ 18, 610 N.W.2d 458, 462

(defining elements of malicious prosecution); Michlitsch v. Meyer, 1999 SD 69, ¶ 19, 594 N.W.2d 731, 735 (same). If the plaintiff fails to prove any of these six elements, he fails in proving his claim. Miessner v. All Dakota Ins. Assoc., Inc., 515 N.W.2d 198, 200 (S.D.1994).

[¶ 13.] In deciding whether the jury was adequately instructed on the applicable laws involved in the malicious prosecution claim, we follow a "two prong approach" for review: "A party challenging as erroneous a jury instruction must show not only `that the instruction was in error, but also that it was prejudicial error to the effect that under the evidence, the jury ... probably would have returned a different verdict.'" Rantapaa v. Black Hills Chair Lift Co., 2001 SD 111, ¶ 17, 633 N.W.2d 196, 202 (quoting City of Sioux Falls v. Hone Family Trust, 1996 SD 126, ¶ 11, 554 N.W.2d 825, 827 (citations omitted)).

[¶ 14.] In this case, the trial court instructed on the elements of malicious prosecution, along with all the definitions to be applied to that claim. Cheryl argues that instruction number 23 should have been given because it presents language closely modeling our language in previous cases. In Miessner, we said:

If the defendant merely states what is believed, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding.

515 N.W.2d at 201. We have...