Roth v. Farner-Bocken Co.

Citation2003 SD 80,667 N.W.2d 651
Decision Date16 July 2003
Docket NumberNo. 22384.,22384.
PartiesGreg ROTH, Plaintiff and Appellee, v. FARNER-BOCKEN COMPANY, Defendant and Appellant.
CourtSupreme Court of South Dakota

Gregory J. Erlandson of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for plaintiff and appellee.

Jon C. Sogn, Thomas G. Fritz and Catherine M. Sabers of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for defendant and appellant.

CALDWELL, Circuit Judge.

[¶ 1.] Greg Roth (Roth) brought claims of age discrimination and invasion of privacy against his former employer, Farner-Bocken Company (Farner). A jury returned a verdict finding in favor of Farner on Roth's age discrimination claim and a verdict in favor of Roth on the invasion of privacy claim. It awarded Roth $25,000 in compensatory damages and $500,000 in punitive damages. Farner appeals. We affirm in part, reverse in part and remand.

FACTS AND PROCEDURE

[¶ 2.] Roth worked as a salesman for Vending Services, a separate Farner related corporation, in Sioux Falls, South Dakota from 1975 until approximately 1990. In 1990 Roth transferred as a sales manager to Farner-Bocken Centerville Company, another related corporation, located in Centerville, Iowa. While in Centerville, Roth experienced personal problems. He was drinking heavily, was charged with stalking, and was hospitalized and diagnosed with bipolar disorder. Roth also had problems with his relationships with customers and co-workers, and Farner eventually determined he could not remain in Centerville. Roth was rehired by Vending Services and was transferred to Rapid City, South Dakota to start up a new territory.

[¶ 3.] In this position, he was under the supervision of Gary Schmidt (Schmidt), whose office was located in Sioux Falls.1 Roth, who had joined Alcoholics Anonymous, continued to have problems with coworkers and Farner continued to receive customer complaints. Ultimately, Farner determined that it would terminate Roth. On July 12, 1996, a meeting was scheduled between Roth, Schmidt and Cy Farner, part owner of Farner, at which Farner intended to terminate Roth's employment. Roth, who had previously had conversations with Cy Farner, in which Cy Farner indicated they were both getting too old for the business, anticipated termination and secretly tape recorded the meeting. After the meeting, in which Roth was indeed terminated, Cy Farner handed Roth an airplane ticket to Rapid City, $20 and requested that Roth return the keys to the company car. [¶ 4.] After his termination, Roth met with Attorney Rick Johnson of Gregory, South Dakota, to discuss the possibility of an age discrimination claim against Farner. Roth left a package with Johnson which contained the tape-recording, a transcript of his termination meeting, a hand-written document Roth had compiled regarding his background with the company and his experiences during the last six months of employment, hand-written notes documenting phone calls to Schmidt and Cy Farner, and copies of work week records and documents recording his sales. This package was reviewed by Attorney Stephanie Pochop (Pochop) of Johnson's office. Pochop determined that she was unable to take Roth's case, drafted a letter advising Roth of this, and returned the package to him with the letter in a large mailing envelope. However, due to a clerical error, both the letter and the package were mailed to Roth at Vending Services' Sioux Falls address.

[¶ 5.] Schmidt received the package and testified at trial that he opened it in the regular course of business. However, after opening the package, Schmidt testified that he realized the transcript it contained was of a recording of the termination meeting. Schmidt then photocopied the entire contents of the package, including Pochop's letter, and forwarded the photocopies to Farner's Vice President of Sales, Dean Onken, who forwarded them to Farner's President, John Norgaard. Schmidt then removed the No.10 business envelope bearing Pochop's law firm's address from the original mailing envelope and attached it to a new mailing envelope. Over the original mailing address which listed Vending Service's Sioux Falls address, Schmidt pasted a type-written label bearing Roth's home address. Schmidt testified he then dropped this package in the mail to Roth.

[¶ 6.] Sometime in 1998, Vending Services and many other separate Farner related corporations combined, merging into one surviving corporation named Farner-Bocken Company. In August 1998, Roth filed a lawsuit alleging age discrimination against Farner. During the discovery process, Roth obtained his personnel file from Farner.2 In that file, Roth discovered copies of the documents he left with Attorney Johnson. Additionally, the file also contained a letter concerning Roth's age discrimination claim against Farner from Attorney Johnson addressed to an attorney in West Des Moines, Iowa with a notation that a carbon copy was sent to Roth. On April 12, 2000, Roth amended his complaint to include an invasion of privacy claim.

[¶ 7.] The jury returned a verdict on behalf of Farner on Roth's age discrimination claim, but found for Roth on his invasion of privacy claim. After the verdict was filed, Farner filed a motion for judgment n.o.v., or alternatively, motion for new trial or remittitur. These alternative motions were denied. Farner appeals.

STANDARD OF REVIEW

[¶ 8.] A trial court's rulings on a motion for directed verdict and judgment notwithstanding the verdict are reviewed under the following standard:

A motion for directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court's decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.
A motion for judgment n.o.v. is based on and relates back to a directed verdict motion made at the close of all the evidence. SDCL 15-6-50(b). Thus, the grounds asserted in support of the directed verdict motion are brought before the trial court for a second review. We review the testimony and evidence in a light most favorable to the verdict or the nonmoving party, then without weighing the evidence [we] must decide if there is evidence which would have supported or did support a verdict[.]

In re Estate of Holan, 2001 SD 6, ¶ 9, 621 N.W.2d 588, 590-91 (quoting Bland v. Davison County, 1997 SD 92, ¶ 26, 566 N.W.2d 452, 460) (citation omitted).

[¶ 9.] Our standard of review on a motion for a new trial is well established:

Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court's decision absent a clear showing of abuse of discretion. If the trial court finds an injustice has been done by the jury's verdict, the remedy lies in granting a new trial. We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and circumstances of the particular case could reasonably have reached such a conclusion.

Biegler v. American Family Mutual Ins. Co., 2001 SD 13, ¶ 17, 621 N.W.2d 592, 598 (quoting Schuldies v. Millar, 1996 SD 120, ¶ 8, 555 N.W.2d 90, 95).

[¶ 10.] "[A] jury's verdict should not be set aside `except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law." Biegler, 2001 SD 13 at ¶ 32, 621 N.W.2d at 601, (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D. 1983)). "A verdict should only be set aside if the jury's conclusion was unreasonable and a clear illustration of its failure to impartially apply `the reasoning faculty on the facts before them.'" Biegler, 2001 SD 13 at ¶ 32, 621 N.W.2d at 601, (quoting Lewis v. Storms, 290 N.W.2d 494, 497 (S.D.1980)) (additional citations omitted).

ANALYSIS AND DECISION
ISSUE ONE

[¶ 11.] Whether the trial court erred in denying Farner's motions for directed verdict and judgment notwithstanding the verdict.

A. Sufficiency of evidence supporting fraudulent concealment

[¶ 12.] At the end of Roth's case-in-chief, and again at the end of trial, Farner moved the court for a directed verdict on Roth's invasion of privacy claim. The court denied Farner's motions and Roth's invasion of privacy claim was submitted to the jury who rendered a verdict in favor of Roth. Farner then filed a motion for judgment n.o.v., or alternatively, motion for new trial or remittitur. These alternative motions were denied and judgment was entered on the jury's verdict.

[¶ 13.] The statute of limitations on a claim of invasion of privacy is three years. See SDCL 15-2-14. However, the jury found, and the trial court agreed, that Farner fraudulently concealed its invasion of Roth's privacy and the statute was tolled. [¶ 14.] "Fraudulent concealment tolls the statute of limitations until the claim is discovered or might have been discovered with reasonable diligence." Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 14, 581 N.W.2d 510, 515 (citations omitted). Fraudulent concealment applies "when actionable conduct or injury has been concealed by deceptive act or artifice." Id. Absent a confidential or fiduciary relationship, fraudulent concealment consists of "some affirmative act or conduct on the part of the defendant designed to prevent, and which does prevent, the discovery of the cause of action." Id. (quoting Koenig v. Lambert, 527 N.W.2d 903, 905-06 (S.D.1995) (overruled on other grounds)).

[¶ 15.] Nothing in the record indicates a confidential or...

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