Mendenhall v. Swanson

Decision Date04 January 2017
Docket Number#27774
PartiesKEITH MENDENHALL, Plaintiff and Appellant, v. LISA SWANSON, Defendant and Appellee.
CourtSouth Dakota Supreme Court





Vermillion, South Dakota

Attorney for plaintiff

and appellant.



Bantz, Gosch & Cremer, LLC

Aberdeen, South Dakota

Attorneys for defendant

and appellee.

GILBERTSON, Chief Justice

[¶1.] Keith Mendenhall appeals a jury verdict awarding $211,710 to Lisa Swanson, his former wife, in compensatory and punitive damages for intentional infliction of emotional distress and alienation of affection. Keith argues the circuit court erred by admitting 14 exhibits consisting of court documents from prior proceedings. We reverse and remand.

Facts and Procedural History

[¶2.] Lisa married her first husband, Steve Swanson, in 1992. Lisa and Steve had four children together. In 2005, Steve died in a ranching accident. Keith and Steve were close friends, and following Steve's passing, Keith helped Lisa continue to operate the Swanson ranch. Keith and Lisa grew closer during this time and married approximately one year after Steve's death. They had one child together. Lisa and Keith separated in December 2010 and divorced in December 2011.

[¶3.] Before the divorce was finalized, the relationship between Lisa and Keith deteriorated significantly. Shortly after the separation, Lisa sought a protection order against Keith. On March 3, 2011, Keith stipulated to the entry of a restraining order to run for five years, which was entered by Judge Jon Flemmer. Six months later, on September 8, 2011, Lisa was granted a one-year protection order against Keith. On March 18, 2013, Judge Scott Myren extended theprotection order until September 9, 2016.1 Judge Myren issued findings of fact detailing Keith's conduct toward Lisa.

[¶4.] Meanwhile, the parties also clashed over the custody of their child. Judge Robert Timm awarded primary physical custody to Lisa on August 22, 2012. One week later, on August 29, Keith filed a motion for a change in custody. He also requested the circuit court order Lisa to submit to psychological evaluation. Judge David Gienapp denied both requests on February 1, 2013, with a letter decision. On May 28, 2014, in another letter decision, Judge Gienapp held Keith in contempt for failing to abide by the court's child-visitation arrangement.

[¶5.] Keith initiated the present action on October 19, 2012. He brought a claim for slander against Lisa, alleging she had falsely reported to a law-enforcement officer that Keith had sexually abused her daughter. Lisa counterclaimed for intentional infliction of emotional distress, invasion of privacy, slander, and alienation of her daughter's affection. Since that time, Keith has been held in contempt two additional times for failing to comply with an order for discovery and an order to pay costs.

[¶6.] Before trial, Lisa made a motion for judgment as a matter of law on Keith's slander claim, which was granted. The remaining claims proceeded to trial January 19-22, 2016. Leading up to the trial, Lisa persuaded the circuit court to admit 14 exhibits consisting of documents from the various, prior proceedings discussed above. These documents included Judge Gienapp's two letter decisionsand Judge Myren's findings of fact and conclusions of law. At trial, the court received those documents into evidence and issued Jury Instruction 38, which stated:

I have taken judicial notice of the facts contained in the following documents, which have been marked and admitted as exhibits in this matter, which you will be able to take into your jury deliberations:
Letter Decision, Judge Gienapp 2-1-13 re custody and Keith's request for mental health evaluation of Lisa, 10-94
Letter Decision, Judge Gienapp 5-8-14 re contempt and visitation, 10-94
Findings of Fact and Conclusions of Law, 10-1094, 5-28-14
Order 10-1094 re contempt and visitation, 5-28-14
Stipulation for Restraining Order, Roberts Co., Civ. 11-38, 3-3-11
Order of Protection, Roberts Co. TPO 11-0127, 9-8-11
Order of Protection, 11-0127, 3-25-13 (modification)
Bench Ruling 1-10-13 on Contempt, Restraining Order viol'ns
Findings of Fact and Conclusions of Law 11-38, 3-18-13
Modification of Restraining Order 11-38, 3-18-13
Findings of Fact and Conclusions of Law 11-38, 5-29-14
Second Modification of Restraining Order 11-38, 5-29-14
Order re Contempt, Day County Civ. 13-34 11-10-15
State v. Mendenhall Judgment of Conviction CR 98-0236
You must accept as conclusive any fact judicially noticed.
You should consider these judicially noticed facts along with other testimony and exhibits introduced during the trial in deciding any of the issues before you.

The jury subsequently found in favor of Lisa on each of her counterclaims except slander and awarded compensatory damages in the amount of $11,710 for intentional infliction of emotional distress and $25,000 for alienation of affection. The jury also awarded Lisa $175,000 in punitive damages.

[¶7.] Keith appeals, raising one issue: Whether the circuit court erred by taking judicial notice of the facts contained in the documentation of prior proceedings.2

Analysis and Decision

[¶8.] Keith primarily argues that it is improper for the circuit court to admit the 14 exhibits listed in Instruction 38. According to Keith, the circuit court improperly took judicial notice of the facts in those exhibits. In contrast, Lisa argues that the instruction was justified under principles of issue preclusion. She further argues that even if those documents were improperly noticed, she presented other evidence and witness testimony sufficient to justify the jury's verdict.

[¶9.] "Judicial notice is merely a substitute for the conventional method of taking evidence to establish facts." Grand Opera Co. v. Twentieth Century-Fox Film Corp., 235 F.2d 303, 307 (7th Cir. 1956). The doctrine "governs judicial notice of an adjudicative fact only, not a legislative fact." SDCL 19-19-201(a). "Adjudicative facts are those which relate to the immediate parties involved—the who, what, when, where[,] and why as between the parties." In re Dorsey & Whitney Tr. Co., 2001 S.D. 35, ¶ 19, 623 N.W.2d 468, 474 (citing Fed. R. Evid. 201 advisory comm.'s note to subdiv. (a)). Under South Dakota's rules of evidence, a "court may judicially notice [an adjudicative] fact that is not subject to reasonable dispute because it: (1) Is generally known within the trial court's territorial jurisdiction; or (2) Can be accurately and readily determined from sources whose accuracy cannot reasonablybe questioned." SDCL 19-19-201(b). Generally speaking, a court may not judicially notice a fact simply because it has been previously included in the findings of fact of a prior proceeding.

While judicial findings of fact may be more reliable than other facts found in the file, this does not make them indisputable; they were disputed at trial and if the case is overturned on appeal, they will be disputed again. If a fact found in one case could be judicially noticed as true, then the doctrine of res judicata would be virtually superfluous because a party in one case could not dispute any fact that was found true in another case, whether or not the party had any opportunity to litigate that fact. Be that as it may, most courts agree that Rule 201 does not permit courts to judicially notice the truth of findings of fact.

21B Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5106.4 (2d ed.) (footnotes omitted), Westlaw (database updated April 2016); accord In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 468 (6th Cir. 2014); Taylor v. Charter Med. Corp., 162 F.3d 827, 829-30 (5th Cir. 1998); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994); Liberty Mut. Ins. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992); Holloway v. Lockhart, 813 F.2d 874, 878-79 (8th Cir. 1987).

[¶10.] Even so, principles of issue preclusion might apply to prior factual findings. "Under the judicially-developed doctrine of [issue preclusion], once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation." United States v. Mendoza, 464 U.S. 154, 158, 104 S. Ct. 568, 571, 78 L. Ed. 2d 379 (1984). This doctrine "relieve[s] parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication." Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 415, 66 L. Ed. 2d 308 (1980). A party mayinvoke issue preclusion either offensively or defensively. See Melbourn v. Benham, 292 N.W.2d 335, 339 n.3 (S.D. 1980) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971)). However, "there must have been 'a full and fair opportunity to litigate the issues in the prior proceeding.'" Am. Family Ins. Grp. v. Robnik, 2010 S.D. 69, ¶ 20, 787 N.W.2d 768, 775 (quoting People ex rel. L.S., 2006 S.D. 76, ¶ 22, 721 N.W.2d 83, 90).

[¶11.] It is unclear whether the circuit court admitted the 14 exhibits listed above, see supra ¶ 6, on the basis of judicial notice, issue preclusion, or some combination of the two. Throughout the various submissions and hearings, the court and the parties conflated these two concepts. Lisa initially asked the court to apply the doctrine of issue preclusion to Exhibits 9, 10, and 11. On the basis of those exhibits, she asked the court to grant summary judgment on her counterclaims for intentional infliction of emotional distress and alienation of affection. Yet, Lisa later submitted a motion titled "Request for Judicial Notice" in reference to all 14 exhibits. In a subsequent written order, the court granted the...

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