Mendenhall v. Swanson, No. 27774.

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice.
• Citation: 889 N.W.2d 416
• Docket Number: No. 27774.
• Decision Date: 04 January 2017
• Parties: Keith MENDENHALL, v. Lisa SWANSON.

889 N.W.2d 416

Keith MENDENHALL,
v.
Lisa SWANSON.

No. 27774.

Supreme Court of South Dakota.

Considered on Briefs Nov. 7, 2016.
Decided Jan. 4, 2017.

889 N.W.2d 417

Jonathan K. Van Patten, Vermillion, South Dakota, Attorney for plaintiff and appellant.

Greg L. Peterson, Justin M. Scott of 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 the protection 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.

[889 N.W.2d 418

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 decisions and 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.

[889 N.W.2d 419

¶ 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...