Novak v. McEldowney, No. 22179.

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice.
• Citation: 2002 SD 162,655 N.W.2d 909
• Parties: Dawn NOVAK and Donald Novak, Plaintiffs and Appellants, v. Dennis McELDOWNEY, Defendant and Appellee.
• Docket Number: No. 22179.
• Decision Date: 23 December 2002

655 N.W.2d 909
2002 SD 162

Dawn NOVAK and Donald Novak, Plaintiffs and Appellants,
v.
Dennis McELDOWNEY, Defendant and Appellee

No. 22179.

Supreme Court of South Dakota.

Argued October 7, 2002.

Decided December 23, 2002.

655 N.W.2d 911

Casey N. Bridgman, Jeff Adel, of Bridgman and Adel, Wessington Springs, South Dakota, Attorneys for plaintiffs and appellants

Jon C. Sogn, Heath R. Oberloh, of Lynn, Jackson, Shultz and Lebrun, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Dawn and Donald Novak brought several claims against Dennis McEldowney (McEldowney), which stemmed from Dawn's employment on McEldowney's farm. Dawn alleged breach of contract, intentional infliction of emotional distress, battery, sexual harassment, and punitive damages. Donald sought damages for loss of consortium. After a jury trial, Dawn was awarded $5,000 for her breach of contract claim; however, judgment was entered in McEldowney's favor on the other claims. The Novaks appeal the jury's verdict. We reverse and remand in part and affirm in part.

FACTS AND PROCEDURE

[¶ 2.] McEldowney owns a farm near Wessington Springs, South Dakota and employs several people as farm workers. One of his employees, Donald Novak, began working for McEldowney in March of 1989 and continued working for him for the next ten years. After Donald sustained an injury to his hand in approximately 1995, his wife, Dawn, helped Donald perform his work around the farm. Before long, Dawn was working full-time and McEldowney began to pay her initially at an hourly wage, and later at a set salary beginning in November of 1997. The predominant part of Dawn's employment was managing the newly built hog confinement unit.

[¶ 3.] Throughout Dawn's employment, she alleged that there were numerous incidences of sexual harassment.¹ For example, she claimed McEldowney asked her how she became "horny," how she "got off," and how she became sexually aroused. Dawn further testified, and McEldowney admitted to at trial, that in August of 1997, while shingling a roof, McEldowney looked down the front of Dawn's shirt as she was climbing down a ladder, and commented to her that he had a nice view. He told her if she took off her shirt, then he would remove his shirt. At several other times, McEldowney smelled Dawn's hair and arms after she took a shower. Dawn also accused McEldowney of telling dirty jokes, talking in detail about the sexual exploits between President Bill Clinton and Monica Lewinsky, and urinating in front of her. Another major complaint by Dawn was that the entry to the bathroom, which the farm workers were required to use, did not have a door and whenever she showered, the shower curtain would blow open. She further alleged that on one occasion, she saw McEldowney nude in the bathroom and he laughed, telling her she had just received a "big treat that morning."

[¶ 4.] In addition to these incidences, Dawn claimed that in the Spring of 1998, after Dawn had showered and dressed and was working at a sink, McEldowney came in and put his hand on Dawn's breast and asked Dawn how that felt. She further alleges that on Halloween night of 1998, while they were discussing work at McEldowney's house, he grabbed her breasts

655 N.W.2d 912

from behind and asked her how she liked that. The third incident of alleged actual contact purportedly occurred in the Spring of 1999. McEldowney came into town to look at remodeling that Dawn had done in the upstairs bathroom in the Novak's house.² While in the bathroom, McEldowney allegedly shut the door, put both arms around her, pushed her up against the sink and told her that he would show her some real loving. The Novaks quit working for McEldowney on June 1, 1999, two weeks after this alleged incident

[¶ 5.] Just eleven days later, McEldowney hired Wes Byrd to work on his farm. The wife of Wes, Heather Byrd, began helping out on the farm by cooking and cleaning at the McEldowney house. Heather claimed that she, too, was sexually harassed by McEldowney. Some of the alleged conduct was that McEldowney smelled Heather's hair and arms and leaned up close to her. Heather also claimed that McEldowney left the door to the shower open so that Heather could see him while he showered. Heather further states that he allegedly lounged around the house in his underwear while Heather was present. On another occasion when McEldowney was in the house in town, Heather claims he came into the bathroom while she was cleaning it, shut the door, and would not let her out until her husband came home. She alleges that because she did not sleep with McEldowney, her husband was fired on July 9, 1999.

[¶ 6.] Prior to trial, the trial court granted McEldowney's motions in limine which excluded Heather's testimony and any other evidence regarding her claims, and any testimony concerning incidences that occurred in 1995 because it was beyond the statute of limitations. The Novaks appeal and raise the following issues:

1. Whether the trial court abused its discretion when it excluded the other bad acts evidence.

2. Whether the trial court abused its discretion when it excluded testimony regarding an alleged incident that occurred in 1995.

STANDARD OF REVIEW

[¶ 7.] A court's evidentiary rulings are reviewed under the abuse of discretion standard. State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353 (citing State v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263) (citations omitted). An evidentiary ruling will not be overturned unless error is "demonstrated ... [and] shown to be prejudicial error." Id. (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D. 1976)). Error is prejudicial when, "in all probability ... [it] produced some effect upon the final result and affected rights of the party assigning it." Id. (quoting K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983)).

ANALYSIS AND DECISION

[¶ 8.] 1. Whether the trial court abused its discretion when it excluded the other bad acts evidence.

[¶ 9.] Although the trial court found Heather's testimony to be relevant, it found that it was unduly prejudicial. McEldowney did not file a cross-appeal on the relevancy issue and only argues that it was prejudicial. For purposes of this appeal, we will mainly focus on this argument. However, we will briefly address the relevancy issue in our analysis.

655 N.W.2d 913

[¶ 10.] For evidence to be admitted during trial, it first must be found to be relevant.³ Once the evidence is found to be relevant, it is admissible unless it is specifically excluded. The applicable statute involved in the instant case is SDCL 19-12-5 (FRE 404(b)), which provides

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[¶ 11.] Furthermore, this statute is a rule of inclusion. State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 798. Therefore, if evidence of other acts is...