#27774-r-DG
2017 S.D. 2

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                ****
KEITH MENDENHALL,                        Plaintiff and Appellant,

     v.

LISA SWANSON,                            Defendant and Appellee.

                                ****

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

                                ****

                   THE HONORABLE JON S. FLEMMER
                              Judge

                                ****


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.



                                ****


                                         CONSIDERED ON BRIEFS ON
                                         NOVEMBER 7, 2016
                                         OPINION FILED 01/04/17
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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




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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.

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


1.      An order was entered on August 27, 2012, that extended the original one-year
        order until a hearing could be held on Lisa’s request to extend the protection
        order.

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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.
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#27774

[¶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 468, 474 (citing Fed. R. Evid. 201 advisory comm.’s

note to subdiv. (a)). Under South Dakota’s rules of evidence, a “court may judicially

notice [an adjudicative] fact that is not subject to reasonable dispute because it: (1)

Is generally known within the trial court’s territorial jurisdiction; or (2) Can be

accurately and readily determined from sources whose accuracy cannot reasonably


2.      Initially, Keith also appealed the circuit court’s dismissal of his slander
        claim. The parties subsequently submitted a joint motion to withdraw this
        issue on appeal, which this Court granted.

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#27774

be questioned.” SDCL 19-19-201(b). Generally speaking, a court may not judicially

notice a fact simply because it has been previously included in the findings of fact of

a prior proceeding.

             While judicial findings of fact may be more reliable than other
             facts found in the file, this does not make them indisputable;
             they were disputed at trial and if the case is overturned on
             appeal, they will be disputed again. If a fact found in one case
             could be judicially noticed as true, then the doctrine of res
             judicata would be virtually superfluous because a party in one
             case could not dispute any fact that was found true in another
             case, whether or not the party had any opportunity to litigate
             that fact. Be that as it may, most courts agree that Rule 201
             does not permit courts to judicially notice the truth of findings of
             fact.

21B Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5106.4

(2d ed.) (footnotes omitted), Westlaw (database updated April 2016); accord In re

Omnicare, Inc. Sec. Litig., 769 F.3d 455, 468 (6th Cir. 2014); Taylor v. Charter Med.

Corp., 162 F.3d 827, 829-30 (5th Cir. 1998); United States v. Jones, 29 F.3d 1549,

1553 (11th Cir. 1994); Liberty Mut. Ins. v. Rotches Pork Packers, Inc., 969 F.2d 1384,

1388 (2d Cir. 1992); Holloway v. Lockhart, 813 F.2d 874, 878-79 (8th Cir. 1987).

[¶10.]       Even so, principles of issue preclusion might apply to prior factual

findings. “Under the judicially-developed doctrine of [issue preclusion], once a court

has decided an issue of fact or law necessary to its judgment, that decision is

conclusive in a subsequent suit based on a different cause of action involving a

party to the prior litigation.” United States v. Mendoza, 464 U.S. 154, 158,

104 S. Ct. 568, 571, 78 L. Ed. 2d 379 (1984). This doctrine “relieve[s] parties of the

cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by

preventing inconsistent decisions, encourage[s] reliance on adjudication.” Allen v.

McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 415, 66 L. Ed. 2d 308 (1980). A party may
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#27774

invoke issue preclusion either offensively or defensively. See Melbourn v. Benham,

292 N.W.2d 335, 339 n.3 (S.D. 1980) (citing Blonder-Tongue Labs., Inc. v. Univ. of

Ill. Found., 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971)). However, “there

must have been ‘a full and fair opportunity to litigate the issues in the prior

proceeding.’” Am. Family Ins. Grp. v. Robnik, 2010 S.D. 69, ¶ 20, 787 N.W.2d 768,

775 (quoting People ex rel. L.S., 2006 S.D. 76, ¶ 22, 721 N.W.2d 83, 90).

[¶11.]       It is unclear whether the circuit court admitted the 14 exhibits listed

above, see supra ¶ 6, on the basis of judicial notice, issue preclusion, or some

combination of the two. Throughout the various submissions and hearings, the

court and the parties conflated these two concepts. Lisa initially asked the court to

apply the doctrine of issue preclusion to Exhibits 9, 10, and 11. On the basis of

those exhibits, she asked the court to grant summary judgment on her

counterclaims for intentional infliction of emotional distress and alienation of

affection. Yet, Lisa later submitted a motion titled “Request for Judicial Notice” in

reference to all 14 exhibits. In a subsequent written order, the court granted the

motion, stating: “Defendant has requested that the [c]ourt take judicial notice of

various pleadings from the parties’ divorce, restraining order, and protection order

proceedings. These pleadings are matters of public record and it is appropriate for

the [c]ourt to take judicial notice of the same.” Similarly, at a pretrial hearing, the

court noted: “I think the [c]ourt has previously ruled that judicial notice would be

taken of those documents.” However, the court went on to explain: “I believe that

was the intent in asking for the judicial notice so that the documents would be




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entered into evidence and would be part of the evidence without the need to provide

testimony as to what led up to those.”

[¶12.]         Regardless of whether the court relied on judicial notice or issue

preclusion, it failed to conduct the appropriate analysis in either case. As explained

above, the doctrines of judicial notice and issue preclusion each have specific

prerequisites to application. See supra ¶¶ 9-10. An analysis of these elements is

not apparent in the record in regard to any of the 14 exhibits, let alone to each of

the facts contained in those exhibits. 3 In order to treat those facts as conclusively

established or proven, the court should have analyzed them under SDCL 19-19-201 4

or principles of issue preclusion. The court’s failure to do so was error.

[¶13.]         Even so, Lisa contends that any error was harmless because she

introduced sufficient evidence to sustain the jury’s verdict independent of the

14 exhibits. The circuit court’s error is subject to the harmless-error rule. Under

that rule, “[t]he court at every stage of the proceeding must disregard any error or

defect in the proceeding which does not affect the substantial rights of the parties.”

SDCL 15-6-61. In a civil action, “if one cannot say, with fair assurance, after

pondering all that happened without stripping the erroneous action from the whole,



3.       Exhibit 10 alone had 49 separate findings of fact.

4.       Even if some of these facts are judicially noticeable, “[t]he right to take
         judicial notice of some thing, or occurrence, or record, or other fact which may
         be considered properly by the court or jury, does not mean that any such
         judicially noticeable matter is [a]dmissible in evidence.” Winekoff v. Pospisil,
         181 N.W.2d 897, 899-900 (Mich. 1970). While technically not “evidence,” a
         fact judicially noticed must be relevant and may not violate exclusionary
         rules of evidence. 21B Graham, supra ¶ 9, § 5104; see also United States v.
         Watson, 695 F.3d 159, 165-66 (1st Cir. 2012).

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#27774

that the judgment was not substantially swayed by the error, it is impossible to

conclude that substantial rights were not affected.” Kotteakos v. United States,

328 U.S. 750, 765, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946); see also Voorhees

Cattle Co. v. Dak. Feeding Co., 2015 S.D. 68, ¶ 17, 868 N.W.2d 399, 408 (“Error is

prejudicial if it ‘most likely has had some effect on the verdict and harmed the

substantial rights of the moving party.’” (quoting Schoon v. Looby, 2003 S.D. 123,

¶ 18, 670 N.W.2d 885, 891)); 11 Charles Alan Wright et al., Federal Practice &

Procedure § 2883 (3d ed.), Westlaw (database updated April 2016). Thus, contrary

to Lisa’s argument, “[t]he [harmless-error] inquiry cannot be merely whether there

was enough to support the result, apart from the phase affected by the error. It is

rather, even so, whether the error itself had substantial influence.” Kotteakos,

328 U.S. at 765, 66 S. Ct. at 1248.

[¶14.]       We think the circuit court’s error likely did have a substantial

influence on the jury’s verdict. The 14 exhibits were made available to the jury

during its deliberations. The court informed the jury that it “should consider [the]

judicially noticed facts [in the 14 exhibits] along with other testimony and exhibits

introduced during the trial in deciding any of the issues before you.” The court also

instructed the jury that it was required to “accept as conclusive any fact judicially

noticed.” Additionally, during closing argument, Lisa’s counsel elaborated on the

meaning of Instruction 38:

             We also made your job a little easier by asking Judge Flemmer
             to take judicial notice of the documents that he identified for you
             earlier. . . . Judge Flemmer instructed you in 38 that you must
             accept as conclusive any fact judicially noticed. So you can reject
             all of Keith’s testimony and you can accept as conclusive all of
             the Findings of Fact that you’ll see in those documents that are

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             identified clearly for you in Instruction #38. Those documents
             were prepared after judges heard sworn testimony and received
             exhibits just like you folks have seen and heard here this week.
             They have been finally and irreversibly established. Keith can
             argue and testify until he’s blue in the face trying to convince you
             that the judges had it wrong. But . . . you do not have the option
             to disregard or disagree with the facts in those exhibits. When
             you get back in your juryroom go ahead and take time to look at
             both the [c]ourt’s instructions and those documents we’ve given
             you.

(Emphasis added.) The court’s instructions, as well as Lisa’s counsel’s argument to

the jury, were designed to ensure the 14 exhibits had a substantial influence on the

jury’s decision. We presume that the jury followed the court’s instructions. See

Karst v. Shur-Co., 2016 S.D. 35, ¶ 33, 878 N.W.2d 604, 618. Therefore, we conclude

the circuit court’s failure to properly admit the 14 exhibits by either judicial notice

or issue preclusion was prejudicial.

                                       Conclusion

[¶15.]       Factual findings from previous proceedings are not per se noticeable

under Rule 201. In order to justify Instruction 38, the court was required to analyze

the facts contained in the 14 exhibits under principles of judicial notice or issue

preclusion. The court’s failure to do so was error. Considering the court’s jury

instructions and opposing counsel’s closing argument, we think the court’s error

likely had a substantial influence on the jury’s verdict.

[¶16.]       We reverse and remand for a new trial.

[¶17.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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