Tibke v. McDougall

Decision Date20 May 1991
Docket NumberNo. 17337,17337
Citation479 N.W.2d 898
PartiesDoris TIBKE, Tana Koch, and Misty Koch, Plaintiffs and Appellants, v. Don McDOUGALL, Tom Bennington, Joann Bennington, Scott Bolton, Dick Anderson, Patty Banwart, Pattye Flannagan, Leonard Remer, Trudie Besse, individually, and in their official capacity as officers or members of the Board of Directors of the West River Appaloosa Club and Sherry Bolton, Defendants and Appellees. . Considered on Briefs
CourtSouth Dakota Supreme Court

Bruce H. Ellison, Rapid City, for plaintiffs and appellants.

Rexford A. Hagg of Whiting, Hagg & Hagg, Rapid City, for defendants and appellees.

BRADSHAW, Circuit Judge.

Doris Tibke (Tibke), Tana Koch (Tana), and Misty Koch (Misty) (collectively plaintiffs) take an intermediate appeal from a trial court order dismissing their cause of action for slander and Tibke's claim of intentional infliction of emotional distress against all defendants. They further appeal the order dismissing their lawsuits and granting partial summary judgment in favor of all defendants on plaintiffs' claims for tortious interference with business relations and expectancy except Tibke's claim against defendant Tom Bennington. We affirm.

PROCEDURAL HISTORY AND FACTS

Tibke ran a family horse training business near Rapid City, South Dakota, from 1972 through the summer of 1985. This was conducted on her own ten acres of land complete with indoor and outdoor facilities for riding lessons, and training and boarding horses. Tana and Misty, Tibke's daughters, also participated in the family horse business. In the summer of 1985 Tibke sold her ten acre training facility and planned to move to Arizona. She changed her mind, however, and in the fall of 1985 purchased a mobile home in Piedmont, South Dakota. Subsequently, Tibke made an oral arrangement with Joe and Maxine Murdza where Tibke was allowed to board her horses at the Murdza ranch and continue training and giving lessons at the ranch. In return, the Murdzas were paid a portion of the profits. In approximately March of 1986 the arrangement between Tibke and Murdza was terminated. After losing the Murdza Ranch facilities, Tibke tried to get her horses into indoor training facilities at Hart Ranch and at the Gerald Tanner ranch, but no stalls were available.

Defendants are members of the West River Appaloosa Horse Club, Inc., (WRAC), which is a non-profit South Dakota corporation organized in 1969. Plaintiffs are suing all but one defendant individually and in their official capacity as officers or directors of the WRAC. WRAC is a local horse club which is affiliated with the national organization, Appaloosa Horse Club, Inc., (ApHC) located in Moscow, Idaho. WRAC is a voluntary organization and membership is a privilege. Article II, Section G of the WRAC Constitution states: "Those members abusing their privileges of membership shall have their membership revoked by the Board of Directors."

Tibke had been a member in good standing of WRAC for about fifteen years prior to December 1985. Her children were also members of the WRAC. In December 1985, following a November 22, 1985, general meeting of the WRAC, 1 the WRAC Board of Directors terminated Tibke's membership on the grounds of her unsportsmanlike conduct and her continued disruptive behavior at meetings and horse shows. Defendants contend they were acting under the rights conferred upon them by the WRAC Constitution in revoking Tibke's membership. The Tibke-Murdza relationship was not terminated because of Tibke's loss of membership in the WRAC.

The Board of Directors determined that Tibke had abused her privileges of membership and that her conduct was detrimental to and not in the best interests of WRAC and the harmonious relationship of its members. Further, defendants contend that Tibke's unceasing disruptive behavior and her outstanding unpaid debt owed WRAC 2 were considered by the WRAC Board of Directors in deciding that Tibke would be denied the privilege of exhibiting horses in WRAC-sponsored shows, as an owner, trainer, or rider of any horse sought to be entered in any event. Tibke was informed in December 1985 that she could not renew her WRAC membership for 1986; however, Tibke was allowed to exhibit at WRAC shows despite her loss of membership. She was formally advised by a letter dated June 9, 1987, of the loss of exhibiting privileges until she paid her debt. Despite that letter and a subsequent phone call by Tom Bennington to Elaine Thomas informing her that Tibke could not show Elaine's horse at an upcoming show in Newcastle, Wyoming, Tibke still attempted to show Elaine's horse in Newcastle in June 1987 and was refused entry into the show. Tibke filed a protest with ApHC over the denial of her entry. ApHC, upon a hearing, denied the protest.

In July 1986, Tibke was notified that she had been approved as a judge by ApHC. She lost her judging card as a result of her unprofessional behavior at an August 1986 horse show sponsored by WRAC. 3 Tibke's membership in ApHC was revoked in July 1988 and she was barred by the national club for life. ApHC proceedings are separate and distinct from the proceedings before us now. Neither WRAC nor ApHC is a named defendant in this lawsuit.

This is an intermediate appeal of the second of two lawsuits brought by Tibke against defendants. The first complaint dated December 19, 1986, alleged damages for Tibke's loss of reputation and business because of the loss of WRAC membership privileges and because of comments and observations made by various members of WRAC about Tibke's changing clothes in public at a July 1985 horse show, attempts to change club rules, unpopularity with members of WRAC, and her uncouth conduct and vulgar language. Plaintiffs claimed five causes of action: (1) tortious interference with business relations; (2) slander resulting in injury to profession, trade, or business; (3) slander; (4) intentional infliction of emotional distress to Tibke; and (5) infliction of emotional distress upon the Tibke children. This first complaint was dismissed for failure to state any claim upon which relief could be granted.

Plaintiffs served a second complaint 4 against the same defendants. This second complaint, the subject of this action, essentially repeated three of the same causes of action: (1) tortious interference with business relations or expectancy; (2) slander resulting in injury to profession, trade, or business; and (3) intentional infliction of emotional distress.

The trial court dismissed with prejudice the allegations of slander and intentional infliction of emotional distress for failure to state a cause of action against all defendants. But, the trial court found that plaintiffs had stated a cause of action for tortious interference with business relations.

Subsequent to the court's order, defendants moved for summary judgment based on Murdzas' affidavits that defendants had not interfered with any contract between Murdzas and Tibke. The trial court granted partial summary judgment in favor of defendants with regard to any tortious interference with Tibke's oral agreements with Murdzas and any relationships or damages resulting therefrom, but allowed plaintiffs additional time to identify with specificity any other contracts that may have been tortiously interfered with by defendants.

All of the defendants have testified by affidavit or stated in their answers to plaintiffs' interrogatories that they have never said or done anything intended to interfere with any business relations of the plaintiffs, nor have they ever discouraged or tried to dissuade anyone from using Tibke as a horse trainer.

After taking Tibke's deposition defendants filed a second motion for summary judgment on the claim of tortious interference with business relations. In support of Tibke's claim that defendants tortiously interfered with her business from approximately 1985 through 1989, Tibke named herself and eleven potential witnesses. All twelve filed affidavits, ostensibly in support of plaintiffs' claim. 5 After reviewing this new evidence, the court denied defendants' motion for summary judgment.

After deposing the twelve affiants, 6 defendants individually moved for summary judgment. On July 31, 1990, the trial court granted partial summary judgment on the claim of tortious interference with business relations in favor of all defendants except Tom Bennington because a phone call he made may have affected an alleged agreement between Tibke and John and Elaine Thomas. Furthermore, the court dismissed, with prejudice, all claims by Misty and Tana against all defendants. Plaintiffs raise four issues on appeal.

STATEMENT OF LEGAL ISSUES

I. DID THE TRIAL COURT ERR IN ITS ORDER DISMISSING PLAINTIFFS' CAUSE OF ACTION FOR SLANDER AGAINST ALL DEFENDANTS?

II. DID THE TRIAL COURT ERR IN ITS ORDER DISMISSING PLAINTIFF TIBKE'S CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL DEFENDANTS?

III. DID THE TRIAL COURT ERR IN ITS ORDER GRANTING SUMMARY JUDGMENT FOR ALL NAMED DEFENDANTS EXCEPT TOM BENNINGTON AS TO TIBKE'S CLAIM OF TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS?

IV. DID THE TRIAL COURT ERR IN ITS ORDER DISMISSING THE LAWSUITS BROUGHT BY PLAINTIFFS TANA AND MISTY?

STANDARD OF REVIEW

The South Dakota Rules of Civil Procedure state that if, on a motion to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in SDCL 15-6-56. 7

The settled record before us plainly indicates that matters outside the pleadings were presented to and considered by the trial court before the orders to dismiss were entered against plaintiffs. 8 Accordingly, on review we treat defendants' motions to dismiss as motions for summary judgment and the disposition a grant of those motions. ...

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