#28441, #28453-aff in pt & rev in pt-SRJ
2018 S.D. 80

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                      ****


JERRY W. CEDAR,                              Plaintiff and Appellant,

      v.

BRUCE JOHNSON,                               Defendant and Appellee.

                                      ****


                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIFTH JUDICIAL CIRCUIT
                     BROWN COUNTY, SOUTH DAKOTA

                                      ****

                  THE HONORABLE RICHARD A. SOMMERS
                               Judge

                                      ****


ROBERT A. CHRISTENSON                        Attorney for plaintiff
Sioux Falls, South Dakota                    and appellant.


THOMAS J. COGLEY of
Ronayne and Cogley, P.C.                     Attorneys for defendant
Aberdeen, South Dakota                       and appellee.


                                      ****


                                             ARGUED ON
                                             OCTOBER 2, 2018
                                             OPINION FILED 11/28/18
#28441, #28453

JENSEN, Justice

[¶1.]        Jerry Cedar (Cedar) brought an action for alienation of affections

against Bruce Johnson for causing the end of Cedar’s marriage to Leslie Cedar

(Leslie). At the close of Cedar’s case-in-chief at trial, Johnson moved for judgment

as a matter of law. The court granted the motion determining that Cedar failed to

present evidence of his damages. Cedar appealed the dismissal of the action.

Johnson filed a notice of review, arguing the circuit court erred in denying his other

grounds for dismissal as a matter of law. We affirm in part, reverse in part, and

remand.

                          Facts and Procedural History

[¶2.]        Cedar and Leslie were married in Kansas in 2000. Early in the

marriage the couple conceived their only child, N.C. In 2006, the family moved to

Wisconsin to help care for Leslie’s father. In 2007, Leslie began an online

relationship over Facebook. Cedar discovered the relationship, and the couple

briefly attended couple’s counseling to rehabilitate their marriage.

[¶3.]        The couple moved to Frederick, South Dakota in September 2014. In

April 2015, Leslie began working at the Titan Bar, a local restaurant owned by

Johnson. Johnson had recently purchased the restaurant after moving to

Frederick. Cedar occasionally worked for Johnson in the evenings as a cook. All

the parties agree that the relationship between Johnson and Leslie was initially

purely professional.

[¶4.]        Johnson lost his wife to cancer around May 2015. Cedar testified that

at some point thereafter, Johnson and Leslie began frequently texting one another


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during non-work hours. Cedar also testified that Johnson started paying special

attention to Leslie and seemed eager to be around her. Cedar presented evidence

that Johnson would bring Leslie coffee, donuts, soda, and gave her gifts. Cedar

testified that he noticed that Leslie’s affections for him began to change in August

or September of 2015.

[¶5.]        Johnson testified that he initially had no romantic interest in Leslie,

but began to develop feelings for her in the fall of 2015. Johnson and Leslie both

testified that they did not express romantic feelings toward one another until late

September 2015. Johnson and Leslie both testified that their relationship did not

become sexual until November 2015 when they had sexual relations once in

Johnson’s restaurant office and once at his home. Johnson testified that he was

initially hesitant to start a relationship with Leslie because she was married, but

felt more comfortable doing so after learning Leslie felt no attachment to Cedar and

considered her marriage to be over.

[¶6.]        Leslie told Cedar about her relationship with Johnson in November

2015. Cedar testified that Leslie told him at this time “that he (Johnson) worked

his charm on her . . . and she fell for it.” Cedar claimed that he told Leslie that he

was willing to try to work things out if she would stop seeing Johnson and quit her

job at the restaurant. Instead, Leslie moved out of the home on November 20, 2015,

and moved in with Johnson. In April 2016, Cedar filed for divorce which was

finalized on June 26, 2016.

[¶7.]        On February 4, 2016, Cedar filed this action for alienation of affections

against Johnson seeking compensatory and punitive damages. After Cedar filed the


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lawsuit, Leslie claimed that she also had a sexual relationship with another man,

Archibald “Junior” Linthorne for approximately two weeks in September 2015.

Leslie testified this was before her relationship with Johnson started.

[¶8.]         During those two weeks, Leslie testified she had sex with Junior twice,

once at his home and once in an abandoned farmhouse in Frederick.1 Johnson

testified that he was unaware of the relationship between Leslie and Junior until

approximately December 2015. Cedar testified that he did not believe that a sexual

relationship occurred between Leslie and Junior. He claimed that Johnson and

Leslie had fabricated the story with Junior to help Johnson’s case. Cedar testified

that he visited the abandoned farm house in 2016 after he learned of the alleged

affair. During this visit, Cedar took pictures of the farm house showing it was

difficult to enter and that the house was locked to prevent entry.

[¶9.]         On December 19, 2016, Johnson filed a motion for summary judgment

arguing that no genuine issue of material fact existed to show that Johnson caused

the alienation of Leslie’s affections toward Cedar. The court denied the motion.

Less than a week before trial, Johnson filed a motion to dismiss or in the alternative

a motion for summary judgment. In this motion, Johnson argued that the case


1.      Junior testified by deposition prior to trial, and his testimony matched
        Leslie’s testimony about the two of them having a sexual relationship two
        times during a two-week affair in the fall of 2015. Junior claimed that Leslie
        initiated the sexual relationship with him. Junior also testified in the
        deposition that Leslie was not happy in the marriage to Cedar and planned to
        leave the marriage after N.C. turned eighteen. Junior claimed that Leslie
        confided to him that she was scared of Cedar, and felt Cedar was controlling.
        Junior also testified that during this time, both Leslie and Johnson told him
        they had feelings toward one another. Junior’s deposition was presented as a
        part of the summary judgment motions, but his testimony was not presented
        during Cedar’s case-in-chief at trial.

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#28441, #28453

should be dismissed because the claim for alienation of affections violated public

policy and renewed the original basis for summary judgment.

[¶10.]       A jury trial commenced on September 28, 2017. Cedar presented

testimony from himself, Johnson, and Leslie. During his testimony, Cedar

expressed that he and Leslie were loving and affectionate toward one another until

Leslie’s relationship with Johnson started. Cedar presented Facebook messages

from Leslie and a photo from 2014 in support of his testimony. Cedar also

presented evidence that on their fifteenth wedding anniversary in August 2015,

Leslie posted a Facebook message with a picture of a ring stating that she would

like an anniversary ring for their 20th anniversary. Cedar also presented an

August 2015 Facebook message from Leslie stating, “[fifteenth] Anniversary to

Jc…did ya think we would make it this far lol??? Here’s to the next [fifteen]!!!.”

Cedar also testified that he and Leslie continued to be physically intimate, that they

spent time together, and that they told one another they “loved each other” every

night before falling to sleep. Leslie acknowledged she and Cedar occasionally had

sex, but that she felt no feelings or affection toward Cedar since at least 2011.

Leslie testified that she only intended to stay with Cedar until N.C. turned

eighteen. She described the relationship between her and Cedar to be more like

roommates than a marriage.

[¶11.]       Cedar was asked during his testimony about the effect Leslie’s

separation had upon him. Cedar expressed that he missed being married to Leslie

“every day and every night.” He explained that he missed her love and affection,

seeing her smile in the morning, and hearing her tell him she loved him every


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night. Cedar also discussed the things they did together during the marriage, such

as raising livestock and taking trips. Cedar explained that he had been “emotional”

ever since he learned of her affair with Johnson and that losing Leslie had put him

and their son “through heck.” Cedar also testified that he regretted having to raise

N.C. in a broken home. Cedar did not claim any pecuniary loss or testify to a

specific dollar amount of damages.

[¶12.]        At the conclusion of Cedar’s evidence, Johnson moved for judgment as

a matter of law on several grounds. The circuit court granted the motion on the

question of damages reasoning that Cedar had failed to provide testimony as to the

amount of his damages. The court denied the other grounds for dismissal asserted

by Johnson. On October 4, 2017, the court entered an order dismissing the claim

for alienation of affections.

[¶13.]        Cedar filed a notice of appeal and, by way of notice of review, Johnson

requested review of the circuit court’s denial of his other grounds for dismissal as a

matter of law. The parties’ briefs raise the following issues:

              1.     Whether the circuit court erred by determining as a
                     matter of law that Cedar failed to present sufficient
                     evidence as to the amount of his damages.

              2.     Whether the circuit court erred in not granting Johnson’s
                     motion for judgment as a matter of law on liability and
                     causation.

              3.     Whether SDCL 20-9-7 violates public policy.



                                Standard of Review

[¶14.]        Whether judgment as a matter of law was warranted is reviewed de

novo. Center of Life Church v. Nelson, 2018 S.D. 42, ¶ 18, 913 N.W.2d 105, 110. For
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our review, “we view the evidence in the light most favorable to the verdict or to the

nonmoving party[,]” then we determine whether the evidence supports the motion,

without assessing the validity of the evidence. Id. (citations omitted). “If sufficient

evidence exists so that reasonable minds could differ, judgment as a matter of law is

not appropriate.” Id.

                                Analysis & Decision

             1.     Whether the circuit court erred by determining as a matter of law
                    that Cedar failed to present sufficient evidence of the amount of
                    his damages.

[¶15.]       The tort for alienation of affection emanates from SDCL 20-9-7. “The

gravamen of an action for alienation of affections is enticement.” Rumpca v.

Brenner, 2012 S.D. 33, ¶ 7, 814 N.W.2d 128, 129 (quoting Pankratz v. Miller,

401 N.W.2d 543, 549 (S.D. 1987)). “[T]he rights of personal relation forbid the

enticement of a wife from her husband[.]” Id. (quoting SDCL 20-9-7(2)). We have

consistently held three elements must be proven to show alienation of affections:

             1. Wrongful conduct of the defendant with specific intent to
             alienate one spouse’s affections from the other spouse (such
             intent may develop at any point during the adulterous
             relationship);
             2. Loss of affection or consortium; and
             3. A causal connection between such conduct and loss.

Id., 814 N.W.2d at 129-30.

[¶16.]       On the question of recoverable damages for alienation of affections, we

have previously stated,

             The plaintiff . . . may recover for all direct and proximate losses
             occasioned by the tort, including loss of love and consortium, and
             he or she may recover for any physical pain, mental agony,
             lacerated feelings, wounded sensibilities, humiliation, blow to
             honor, hurt to family life, suspicion cast on offspring, etc.

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Morey v. Keller, 77 S.D. 49, 85 N.W.2d 57, 59 (1957) (quoting 27 Am. Jur. Husband

and Wife, § 543). “The loss of consortium is the actionable consequence of an action

for alienation.” Jones v. Swanson, 341 F.3d 723, 732 (8th Cir. 2003). “Consortium

is a right growing out of the marital relationship” and includes the “right of either

spouse to the society, companionship, conjugal affections, and assistance of the

other”. Pankratz, 401 N.W.2d at 546. “The courts recognize the impossibility of

formulating a definite rule whereby the loss of affection or consortium in money can

be determined and the jury must be allowed wide latitude.” Morey, 85 N.W.2d at 60

(quoting 27 Am. Jur., Husband and wife, § 543).

[¶17.]         In granting the judgment as a matter of law for Cedar’s failure to

present evidence of his damages, the circuit court pointed to the proposed jury

instructions submitted by both parties requiring Cedar to prove the nature and

extent of his damages as one of the necessary elements to prove alienation of

affections. The circuit court relied on Veeder v. Kennedy, 1999 S.D. 23, 589 N.W.2d

610, believing Veeder created a fourth element for alienation of affection requiring

the plaintiff to show the nature and extent of their damages.2 In dismissing Cedar’s



2.       Contrary to the circuit court’s conclusion, evidence of the nature and extent of
         a plaintiff’s injury is not a specific element we have recognized for alienation
         of affections. Veeder approved a jury instruction that set out three elements
         for alienation of affections as follows: (1) wrongful conduct of the defendant;
         (2) loss of affection or consortium; and (3) a causal connection between such
         loss and conduct. Veeder affirmed that this instruction “does not deviate at
         all from what we have declared to be the elements of alienation of affections.”
         1999 S.D. 23, ¶ 37, 589 N.W.2d 610, 619. Further, the issue in Veeder was
         not about damages, but whether the instruction should have included
         language requiring the plaintiff to prove that he intended to entice plaintiff’s
         spouse. Indeed, our cases after Veeder have continued to recognize three
         elements to prove alienation of affections. See e.g. Richardson v. Richardson,
                                                                 (continued . . .)
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claims, the circuit court concluded that while Cedar presented evidence of the

nature of his damages, he failed to prove the extent of his damages. The court

reasoned that to prove the extent of damages, Cedar was required to testify or

present evidence of the dollar amount of damages.

[¶18.]         Generally, “[t]he amount of damages to be awarded is a factual issue to

be determined by the trier of fact.” Roth v. Farner-Bocken Co., 2003 S.D. 80, ¶ 26,

667 N.W.2d 651, 662. “Damages must be reasonable and must be proved with

reasonable certainty.” Lord v. Hy-Vee Food Stores, 2006 S.D. 70, ¶ 31, 720 N.W.2d

443, 454. In explaining the reasonable certainty requirement for damages, we have

stated that “[u]ncertainty as to the fact [of damages] is fatal to recovery, but

uncertainty as to the measure or extent of the damages does not bar recovery.”

Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114, 118 (S.D. 1977).3 “Once the fact of


________________________
(. . . continued)
         2017 S.D. 92, ¶ 29 n.9, 906 N.W.2d 369, 379; Rumpca, 2012 S.D. 33, ¶ 7,
         814 N.W.2d 128, 129-30; State Farm Fire & Cas. Co. v. Harbert, 2007 S.D.
         107, ¶ 24, 741 N.W.2d 228, 236.

3.       Schmidt explained that the term “extent” of damages is not synonymous with
         the “amount” of damages. Reviewing an instruction on damages, this Court
         stated, “[t]he confusion arises from the use of the word ‘extent’ in Instruction
         No. 10 and in the American Jurisprudence text. ‘Extent’ as used was
         intended to refer to the scope or degree of the injury, not the amount, but in
         the context used, the word ‘extent’ could be understood to be synonymous
         with ‘amount’.” Schmidt, Inc., 261 N.W.2d at 118-19. This Court further
         expounded that:

               In reviewing the authorities cited by the original Am. Jur. text
               as authority, we find none which uses the phrase “to an extent
               so definite and certain.” All of the decisions clearly indicate that
               it is the fact, cause, or existence of damage that must be definite
               and certain. See United States v. Dunn, 268 U.S. 121, 45 S. Ct.
               451, 69 L. Ed. 876; County of Nelson v. Northcote, 6 Dak. 378,
                                                               (continued . . .)
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#28441, #28453

damages has been established, uncertainty over the amount of damages is not fatal

to recovery.” Bailey v. Duling, 2013 S.D. 15, ¶ 35, 827 N.W.2d 351, 363. (emphasis

added).

[¶19.]         Damages for alienation of affections encompass loss of consortium and

damages “for any physical pain, mental agony, lacerated feelings, wounded

sensibilities, humiliation, blow to honor, hurt to family life, [and] suspicion cast on

offspring.” These damages are noneconomic in nature.4 We have recognized that

determining the amount of noneconomic damages is “peculiarly a question for the

jury.” Waldner v. Berglund, 2008 S.D. 75, ¶ 14, 754 N.W.2d 832, 836. “The

monetary value of the loss of consortium cannot be determined according to a

definite rule” and we “have allowed the trier of fact ‘wide latitude’ in making its

award”. Sander v. Geib, Elston, Frost Prof’l Ass’n, 506 N.W.2d 107, 119 (S.D. 1993).

Similarly, damages for pain and suffering, mental anguish, and emotional distress

“do not compensate a plaintiff for a known monetary loss which has been

experienced or is likely to be experienced. Thus, there is no way to quantifiably

measure the amount that a trier of fact should award in dollars.” Lenards v.

________________________
(. . . continued)
               43 N.W. 897, 6 L.R.A. 230; Dawe v. Morris, 149 Mass. 188,
               21 N.E. 313, 4 L.R.A. 158, 14 Am. St. Rpts. 404; Wellington v.
               Small, 3 Cushing (Mass.) 145, 50 Am. Dec. 719; Russell v.
               Industrial Transp. Co., 113 Tex. 441, 251 S.W. 1034; 258 S.W.
               462; 51 A.L.R. 1.

         Id. at 118 n.9.

4.       Our cases have not addressed whether a plaintiff may recover economic or
         pecuniary damages in an alienation of affections claim. Since Cedar only
         presented evidence of noneconomic damages, we limit our discussion to those
         damages.

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DeBoer, 2015 S.D. 49, ¶ 13, 865 N.W.2d 867, 871 (quoting Bakker v. Irvine,

519 N.W.2d 41, 48 (S.D. 1994)); see also, Hayes v. Northern Hills General Hosp.,

1999 S.D. 28, ¶ 42, 590 N.W.2d 243, 252 (holding evidence of stress, humiliation, or

mental anguish is enough for the issue of damages for emotional distress to go

before a jury on a claim for intentional infliction of emotional distress).

[¶20.]       Other jurisdictions in alienation of affections claims have not required

a monetary figure to be presented to a jury. See Fitch v. Valentine, 959 So. 2d 1012,

1029 (Miss. 2007) (holding evidence that plaintiff lost his house, custody of his child,

and the loss of his marriage and other noneconomic damages was sufficient for the

jury to establish the loss suffered); Nelson v. Jacobsen, 669 P.2d 1207, 1217

(Utah 1983) (holding recovery for alienation of affections cannot be denied when the

amount of that injury or loss is difficulty to determine and jury instructions and

remittitur help regulate jury awards in such cases).

[¶21.]       Cedar testified that he wanted to be married to Leslie and missed her

love and companionship. He further explained to the jury that he had suffered

every day since the marriage ended and felt remorse for having to raise N.C. in a

broken home. While the damage testimony was limited, there was sufficient

evidence to submit the issue to the jury. Therefore, we reverse the circuit court’s

entry of judgment as a matter of law on damages.

             2.     Whether the circuit court erred in not granting Johnson’s
                    motion for judgment as a matter of law on liability and
                    causation.

[¶22.]       Johnson argues the circuit court erred in denying his motion for

judgment as a matter of law because there was no evidence to show that he had the

specific intent to alienate Leslie’s affections or that he caused Leslie’s alienated
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affections. Cedar claims that the circuit court properly determined that questions

of fact existed for the jury on these issues.

[¶23.]          On a claim for alienation of affections, the plaintiff must show the

defendant’s wrongful conduct was performed with the specific intent to alienate one

spouse’s affections from the other spouse. Richardson, 2017 S.D. 92, ¶ 29 n.9,

906 N.W.2d 369, 380 n.9; Harbert, 2007 S.D. 107, ¶ 22, 741 N.W.2d at 235; Veeder,

1999 S.D. 23, ¶ 39 n.14, 589 N.W.2d at 619 n.14; Pankratz, 401 N.W.2d at 549. The

plaintiff must also prove a causal connection between the wrongful conduct and the

loss. Veeder, 1999 S.D. 23, ¶ 14, 589 N.W.2d at 615. So that “if there are no

affections to alienate, there is no cause of action.” Id. ¶ 27, 589 N.W.2d at 617.

[¶24.]          In addressing the specific intent element, this Court stated in

Pankratz:

                The acts must have been done for the very purpose of
                accomplishing this result. It is not enough that [defendant]
                should have known that continuing the affair might contribute
                to the diminution of [wife’s] affections, where her affections for
                [husband] were alienated before she initiated the relationship
                with [defendant].

401 N.W.2d at 548. Although the tort of alienation of affections requires specific

intent, we clarified in Harbert that this intent may develop any time during the

relationship:

                Additionally, under the modern decisions of this Court, the
                specific intent to alienate affections is not required to be present
                “from the outset” of the affair. Rather, the specific intent to
                alienate one spouse’s affections from the other spouse may
                develop at any point during the adulterous relationship.

2007 S.D. 107, ¶ 23, 741 N.W.2d at 235 (internal citations omitted).




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[¶25.]         Cedar claims that evidence of the frequent text messages5 between

Johnson and Leslie, Johnson’s special treatment of Leslie, and the admitted sexual

relationship between the two of them just before Leslie left the marriage created a

question for the jury of whether Johnson intentionally alienated Leslie’s affections.

Cedar also points to Leslie’s comment to him “that he (Johnson) worked his charm

on her . . . she fell for it” as evidence of Johnson’s intent.

[¶26.]         Johnson argues that both the intent to alienate and causation are

negated by Leslie telling him she did not have affection for Cedar, as well as her

testimony that she did not have feelings for Cedar. Although Leslie testified that

she did not have affection for Cedar, she admitted her feelings for Cedar were

complicated and that she was still confused about how she felt for Cedar. Cedar

presented evidence that he and Leslie still showed love and affection for one

another during this time and that Leslie reaffirmed her commitment to the

marriage on their fifteenth anniversary, just a few months before she left the

marriage. In Rumpca, this Court reversed a circuit court’s order granting summary

judgment for a defendant in an alienation of affections case where there was some

evidence of love and affection in the marriage. 2012 S.D. 33, ¶ 9, 814 N.W.2d at

130. This Court’s decision was made notwithstanding testimony from the wife that

she had stopped loving husband several years before and engaged in an

inappropriate relationship with another man before the defendant. Id.



5.       Leslie testified that the text messages on her phone were provided to Cedar
         in discovery. However, none of the contents of the messages were introduced
         into evidence


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[¶27.]        Johnson also claims that causation was also lacking because of Leslie’s

testimony about her sexual relationship with Junior shortly before starting the

relationship with Johnson. Cedar disputed that the affair took place, but Johnson

counters that Leslie and Junior both admitted the affair occurred and Cedar had no

actual knowledge whether the affair took place. An admission by a party admitting

a fact to be true may dispense with required evidentiary proof. Tunender v.

Minnaert, 1997 S.D. 62, ¶ 21, 563 N.W.2d 849, 853. However, neither Leslie nor

Junior are parties to this action. Accordingly, the question of witness credibility is

generally one for the jury. State v. Buchholtz, 2013 S.D. 96, ¶¶ 24, 28, 841 N.W.2d

449, 457.

[¶28.]        On a motion for judgment as a matter of law, the circuit court must

consider the evidence most favorable to the nonmoving party and “must indulge all

legitimate inferences therefrom in his favor.” Osman v. Karlen & Assocs., 2008 S.D.

16, ¶ 14, 746 N.W.2d 437, 442. Based upon the evidence, a reasonable jury could

infer that Johnson engaged in intentional and wrongful conduct to alienate Leslie’s

affections for Cedar. Likewise, the question of causation also presented questions of

fact for the jury.

[¶29.]        The circuit court did not err in denying the motion for judgment as a

matter of law as to specific intent and causation.

              3.     Whether SDCL 20-9-7 violates public policy.

[¶30.]        Johnson argues that the tort of alienation of affections has become

anachronistic from contemporary societal norms because it arose from the notion

that a husband has a property right in his wife and is entitled to compensation for


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her loss. He argues that such an idea violates public policy in this State. Johnson’s

arguments are nearly identical to those rejected in Veeder.

[¶31.]         The concept that a spouse may claim consortium damages for harm

caused to the marital relationship by the wrongful actions of another is firmly

entrenched in our law and is a right exclusively “growing out of the marriage

relationship”. Zoss v. Dakota Truck Underwriters, 1999 S.D. 37, ¶ 13, 590 N.W.2d

911, 914. Further, our cases have long emphasized “the right of either spouse” to

make a claim for loss of “society, companionship, conjugal affections and assistance

of the other” in an alienation of affections action. Morey, 85 N.W.2d at 58 (emphasis

added).

[¶32.]         While the tort for alienation of affections in South Dakota is born from

the common law, the claim emanates into state law through SDCL 20-9-7.6 Veeder,

1999 S.D. 23, ¶¶ 11, 22-23, 589 N.W.2d at 614, 616. Since the tort is an expression

of the policy in SDCL 20-9-7, it arises from legislative authority. As we explained in

Veeder, the Legislature’s sovereign power is expressed through statutes. 1999 S.D.

23, ¶ 23, 589 N.W.2d 610, 616 (citing SDCL 1-1-23). SDCL 1-1-24 states, “[i]n this

state the rules of the common law . . . are in force except where they conflict with

the sovereign power, expressed in the manner stated in SDCL 1-1-23.” Therefore,


6.       SDCL 20-9-7 provides:
              The rights of personal relation forbid:

                     (1) The abduction or enticement of a husband from his wife or of
                     a parent from a child;
                     (2) The abduction or enticement of a wife from her husband, of a
                     child form a parent, or form a guardian entitled to its custody;
                     (3) The seduction of a wife, daughter, or orphan sister;
                     (4) The seduction of a husband, son, or orphan brother.

                                          -14-
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we are prevented from considering its validity unless it conflicts with legislative

intent or presents a constitutional question. Johnson’s arguments make no such

claim.

[¶33.]       In rejecting the defendant’s public policy arguments in Veeder, the

Court stated, “we are compelled to leave the cause of action intact and instead defer

to the legislature’s ability to decide if there is a need for its elimination.” Indeed,

following our decision in Veeder, the Legislature saw fit to not only leave the cause

of action in place, but even strengthen the underlying policy. In 2002, the

Legislature reviewed SDCL 20-9-7 and included gender neutral language.

2002 S.D. Sess. Laws Ch. 97, § 1 (amending SDCL 20-9-7 to be gender neutral).

Therefore, in keeping with our prior decisions, we decline to repudiate a cause of

action for alienation of affections arising from SDCL 20-9-7. We affirm the circuit

court’s decision to deny the motion to dismiss.

[¶34.]       GILBERTSON, Chief Justice, and KERN and SALTER, Justices,

concur.




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