#26682-a-GAS
2014 S.D. 42
                        IN THE SUPREME COURT
                                OF THE
                       STATE OF SOUTH DAKOTA

                           ****
MEGAN RUSCHENBERG, JESSICA
CORNELIUS and HEATHER RENSCH,              Plaintiffs and Appellants,

      v.
DAVID ELIASON, in his individual
capacity and as an owner and
employee of ANNABELLE’S ADULT
SUPER CENTER OF SOUTH DAKOTA,
LLC, and OLIVIA’S OF SOUTH DAKOTA,
LLC d/b/a OLIVIA’S ADULT SUPER STORE,
      and

ANNABELLE’S ADULT SUPER CENTER
OF SOUTH DAKOTA, LLC and OLIVIA’S OF
SOUTH DAKOTA, LLC d/b/a OLIVIA’S
ADULT SUPER STORE,                         Defendants and Appellees.
                                 ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA
                                 ****
                     THE HONORABLE STUART L. TIEDE
                                 Judge
                                 ****
AARON D. EIESLAND
Johnson Eiesland Law Firm, PC
Rapid City, South Dakota
and
MANUEL J. DE CASTRO, JR.
Sioux Falls, South Dakota               Attorneys for plaintiffs
                                        and appellants.

MICHAEL L. LUCE
LISA M. PROSTROLLO
Murphy, Goldammer, & Prendergast, LLP
Sioux Falls, South Dakota               Attorneys for defendants
                                        and appellees.

                                          ARGUED MARCH 25, 2014
                                          OPINION FILED 07/02/14
#26682

SEVERSON, Justice

[¶1.]         Megan Ruschenberg, Jessica Cornelius, and Heather Rensch,

collectively referred to as Appellants, appeal the circuit court’s denial of Appellants’

motion in limine to exclude evidence of Ruschenberg’s abortion, Appellants’ motion

for mistrial based upon certain statements made by a witness at trial, and

Appellants’ proposed jury instructions regarding the “proxy rule” or “alter ego

rule.” 1 We affirm.

                                     Background

[¶2.]         In 2005, David Eliason and Keith Johnson formed Annabelle’s Adult

Super Center of South Dakota, LLC (Annabelle’s) in Sioux Falls, South Dakota. In

2007, Eliason, his wife, Renee, and Johnson formed Olivia’s of South Dakota, LLC

(Olivia’s) in Tea, South Dakota. Both Annabelle’s and Olivia’s sell adult movies,

clothing, and various other sexual products. Johnson was the majority owner of

Annabelle’s and Olivia’s. Eliason was a minority owner and helped to manage both

businesses.

[¶3.]         In the spring of 2007, Megan Ruschenberg was hired as an employee to

work at both Annabelle’s and Olivia’s. Ruschenberg testified that in June 2007,

Eliason forcibly raped her in a back room at Olivia’s. Ruschenberg did not report

the rape to law enforcement or to anyone at Annabelle’s or Olivia’s. She also did not

tell her roommate or seek medical care following the alleged rape. Ruschenberg

later testified that she did not report the rape to law enforcement because she


1.      For purposes of uniformity with our case law, we will use “alter ego rule”
        instead of “proxy rule” when addressing this issue. See Benson v. Goble, 1999
        S.D. 38, 593 N.W.2d 402.

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believed that Eliason could manipulate the integrity of the Sioux Falls Police

Department with his power and money. Ruschenberg returned to work the next

day and continued working.

[¶4.]        Approximately one month later, Ruschenberg alleged that Eliason,

once again, forced her into the back room of Olivia’s and raped her. Like the

previous incident, Ruschenberg did not report the rape to law enforcement or to

anyone at Annabelle’s or Olivia’s. She did not seek medical care. Ruschenberg

went back to work the day after the second rape.

[¶5.]        Ruschenberg testified that she became pregnant as a result of the

rape. She alleged that she approached Eliason about her pregnancy and that

Eliason told her she had “options,” including allowing Eliason and his wife to adopt

the baby. Ultimately, Ruschenberg decided to have an abortion, and she testified

that she accepted $450 from Eliason so that she could drive to Sioux City, Iowa, and

have the procedure. Conversely, Eliason testified that the $450 payment was an

advance on Ruschenberg’s pay. Ruschenberg could not remember the date she had

the abortion or the location of the clinic in Sioux City, where she had the procedure.

She presented no medical records at trial of the abortion, but she did testify that

she completed medical forms prior to the having the procedure. One of these forms

asked whether the pregnancy was a result of a rape. Ruschenberg testified that she

indicated that her pregnancy was not the result of a rape.

[¶6.]        In October 2007, Ruschenberg agreed to travel with Eliason to North

Carolina on a business trip. She testified that she stayed in the same hotel room

with Eliason for 11 days. It was here that she alleged that Eliason raped her a


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third time. Ruschenberg did not report the third rape to law enforcement or to

anyone at Annabelle’s or Olivia’s because she believed that Eliason “had friends

everywhere in the country[.]”

[¶7.]          In September 2007, Jessica Cornelius was hired as an employee at

Annabelle’s. Cornelius alleged that during her employment, Eliason made several

comments of a sexual nature to her and that Eliason slapped her on her buttocks

while she was working. She also alleged that Eliason forcibly raped her in his office

at Annabelle’s. Cornelius never informed law enforcement, her roommate, or

anyone at Annabelle’s of the rape or Eliason’s conduct. She alleged that she did not

tell anyone of the rape because Eliason knew “powerful people[.]” Cornelius also

never told Johnson about Eliason’s conduct even though she knew that Johnson was

the majority owner of Annabelle’s and Olivia’s and she had spoken with Johnson on

the phone before and after the alleged rape. Cornelius continued working at

Annabelle’s.

[¶8.]          Also in the fall of 2007, Heather Rensch was hired to work at

Annabelle’s. According to Rensch, Eliason made inappropriate jokes and comments

of a sexual nature while Rensch was employed at the business. Rensch alleged that

on one occasion, Eliason shocked her on her arm with a sexual toy and that the

shock left welts on her forearm. Rensch never reported any of these incidents to

anyone at Annabelle’s.

[¶9.]          Similar to Ruschenberg, Rensch agreed to accompany Eliason on a

business trip to North Carolina. Rensch had the opportunity to speak with Johnson




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while in North Carolina, but she never mentioned anything to Johnson about

Eliason’s conduct.

[¶10.]         On the same day in November 2007, Rensch, along with Ruschenberg

and Cornelius, quit working at Annabelle’s and Olivia’s. Appellants also each

applied for a protection order against Eliason. Even though all three women

applied for a protection order, only Ruschenberg and Cornelius pursued the order.

[¶11.]         Ruschenberg, Cornelius, and Rensch filed separate civil complaints

alleging that Eliason had committed several acts of sexual misconduct against them

while he acted as manager of Annabelle’s and Olivia’s. Appellants alleged several

intentional tort claims against Eliason. Appellants also asserted negligent infliction

of emotional distress and negligent training and supervision causes of action

against Annabelle’s and Olivia’s. The separate complaints were eventually

consolidated by court order.

[¶12.]         On December 22, 2010, Annabelle’s and Olivia’s filed a motion for

summary judgment arguing that the businesses were not liable for Eliason’s alleged

misconduct. Judge Patricia C. Riepel presided over the motion hearing. 2 Judge

Riepel dismissed the causes of action for “invasion of privacy, intentional infliction

of emotional distress, false imprisonment, battery, assault, stalking, [ ] kidnapping,

and rape” as asserted against Annabelle’s and Olivia’s. The court also noted that

counsel for the Plaintiffs acknowledged that the intentional tort causes of action

were directed solely against Eliason and were not being asserted against

Annabelle’s and Olivia’s. The circuit court stated that the intentional tort claims


2.       The record does not contain a transcript of this hearing.

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remained against Eliason in his individual capacity. Lastly, Judge Riepel denied

Annabelle’s and Olivia’s motion for summary judgment as to Plaintiffs’ causes of

action for negligent infliction of emotional distress and negligent training and

supervision.

[¶13.]         Judge Stuart L. Tiede presided over the jury trial, which was held from

March 12 to March 15, 2013. Prior to the start of trial, Appellants moved to exclude

evidence of Ruschenberg’s abortion on the grounds that such evidence was overly

prejudicial. The circuit court denied the motion stating:

               Well, I don’t know how the case is going to unfold and what the
               evidence ultimately is going to be about the relationship
               between the plaintiffs and Mr. Eliason, what was said or done
               subsequent to the alleged acts. It does seem to me that if there
               was interaction between one or more of the plaintiffs and the
               defendant, post these intentional torts as alleged by the
               plaintiffs, that that would all be relevant in assessing whether
               or not the tort was committed, whether it has caused any
               damages, and the nature and extent of those damages.

               Furthermore, as [counsel for Annabelle’s and Olivia’s] indicated,
               there may be issues of credibility. Now, I don’t know about - - I
               don’t know Mr. Eliason’s response, whether he admits or denies
               whether there was such a conversation, whether he paid the
               money, whether the abortion, in fact, was obtained or not, I just
               don’t know. But it is - - was included in the complaint.

               I think the sensitive nature of it can be handled through voir
               dire, if necessary, and I trust that you will be able to address
               that issue with the prospective jury panel in order for us to
               obtain a fair and impartial jury.

[¶14.]         During trial, Appellants moved for a mistrial when Johnson gave

certain testimony regarding Eliason’s criminal history. The following exchange took

place between Johnson and Appellants’ counsel:

               Q. And the first time you’re telling this jury you knew there was
               a problem with [Eliason] was when the money wasn’t right?

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#26682

             A. I did not say that, sir.
             Q. Was it when you heard about the protection order?
             A. I heard about that he was going to court for the rape charge
             that he was not found guilty on.

[¶15.]       The circuit court denied Appellants’ motion for mistrial concluding that

Johnson was confused as to the nature of the prior protection order against Eliason

and that Johnson did not “deliberately inject[ ] the issue of the criminal acquittal[.]”

The circuit court also admonished the jury by directing the jury to “disregard that

testimony and it is ordered stricken.” The circuit court continued:

             You are further instructed that no criminal charges were filed
             against Mr. Eliason as a result of the allegations of these
             plaintiffs and there was no trial in this matter.

             You are further instructed that whether or not charges had been
             preferred or were preferred, or whether or not there has been a
             trial, is irrelevant to any issue in this case. You are to
             determine whether or not the allegations of the plaintiffs
             against these defendants are true or not true based upon the
             evidence received here in open court and you are to disregard
             any consideration of whether or not there were criminal charges
             filed, a trial or a conviction or acquittal.

Further, in speaking with counsel outside of the presence of the jury, the circuit

court remarked:

             And I have now admonished the jury that that testimony was
             not correct; that there were no criminal charges, that Mr.
             Eliason was not acquitted of any criminal charge of rape and I’ve
             admonished the jury to disregard the evidence. And I believe
             that the jury will comply with the admonishment and the
             directions of the Court.

[¶16.]       Despite Judge Riepel’s summary judgment order that dismissed the

intentional tort claims against Annabelle’s and Olivia’s, Appellants requested that

the jury be instructed that Annabelle’s and Olivia’s were liable for Eliason’s

intentional torts under the “alter ego rule.” At trial, Appellants also moved to
                                          -6-
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amend their complaint pursuant to SDCL 15-6-15(b) to include the intentional tort

causes of action against the businesses. The circuit court denied Appellants’ motion

to amend, foreclosing Appellants’ arguments regarding the proposed instructions.

The circuit court remarked:

            Well, obviously I was not present for the prior motions hearings,
            did not have an opportunity to review the affidavits, listen to the
            arguments, review the briefs, but as nearly as I can determine
            from the order of Judge Riepel[,] she determined that there were
            no genuine issues of material fact, and that the defendants
            Annabelle’s and Olivia’s were entitled to judgment as a matter
            of law on the question of whether or not they had any liability
            for any alleged intentional acts of Mr. Eliason.

            I don’t know - - I don’t recall her reciting the statute in her letter
            opinion - - I could be wrong - - whether or not she referred to
            SDCL 47-34A-302, which I think makes very clear that a limited
            liability company is liable for loss or injury caused to a person or
            for a penalty incurred as a result of a wrongful act or omission,
            or other actionable conduct of a member or manager acting in
            the ordinary course of business of the company or with authority
            of the company.

            The only reason that we have been dealing with whether or not
            the acts of Mr. Eliason were in the ordinary course of business
            or with authority of the company is because of the remaining
            count, negligent infliction of emotional distress. I think it would
            be prejudicial and unfair to the defendants to, at this late stage,
            now shift the entire theory of the case again back to whether or
            not the acts of Mr. Eliason were in the ordinary course of
            business or with the authority of the company. I realize there
            has been some evidence in that regard. But in my mind it’s
            difficult to envision how - - if the acts as alleged against Mr.
            Eliason are true - - that they would fall within the language of
            the statute here. And, therefore, I can see why Judge Riepel
            ruled the way she did based upon the record as it existed at that
            time.

            I’m not going to disturb it. As I previously commented, in her
            order she commented that the plaintiffs were not contesting that
            issue. She made that express reference in her decision. And, as
            [counsel for Annabelle’s and Olivia’s] has pointed out, it was


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#26682

             reaffirmed again at the pretrial, so I’m going to adhere to my
             prior rulings. The motion is denied.

[¶17.]       The jury returned a verdict for Eliason and the businesses

(Appellees/Defendants) on all claims. We review the following issues in this appeal:

             I.     Whether the circuit court erred in denying Appellants’ motion
                    in limine to exclude evidence of Ruschenberg’s abortion.

             II.    Whether the circuit court erred in denying Appellants’ motion
                    for mistrial based upon Johnson’s statement at trial.

             III.   Whether the circuit court erred in rejecting Appellants’ proposed
                    jury instructions regarding the “alter ego rule.”

                                        Analysis

[¶18.]       Prior to reaching the merits, we must first address a procedural

matter. Eliason did not file a brief in this appeal. Appellants contend that this

Court should consider Eliason’s failure to respond to the appeal as “tantamount to

an admission of appellee that appellant’s appeal is meritorious and summarily

reverse the appealed judgment.”

[¶19.]       Appellants cite Birchfield v. Birchfield in support of their argument.

417 N.W.2d 891 (S.D. 1988). In Birchfield, the Court said, “We could easily hold

that failure to file a brief is tantamount to an admission by an appellee that

appellant’s appeal is meritorious and summarily reverse the appealed judgment.”

Id. at 893. The Court in Birchfield ultimately determined that the “ends of justice”

did not allow the Court in that case to summarily reverse the appealed judgment

because the appellee did not file a brief. Id. Two years after the Court’s decision in

Birchfield, the Court faced with the same issue stated, “We will not automatically

treat an appellee’s failure to file a brief as a confession of error, but may do so at our


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discretion.” Matter of Guardianship of Gallop, 453 N.W.2d 616, 617 (S.D. 1990).

The Court further elaborated on this point in Hawkins v. Peterson and stated that

“[w]hile failure of an appellant to file a brief may be fatal, . . . failure of the appellee

to file a brief does not automatically translate to victory for the appellant.

Appellant still has the burden of showing that the findings of fact are clearly

erroneous or that the conclusions of law are incorrect.” 474 N.W.2d 90, 92 (S.D.

1991). See SDCL 15-26A-80 (stating in pertinent part “[i]f an appellee fails to

timely file his brief, he will not be heard at oral argument except by permission of

the court”).

[¶20.]         Here, we decline to treat Eliason’s failure to file a brief as a confession

of error or as a victory for Appellants. Unlike other appeals involving one appellee,

we have the benefit of a reply brief filed by Annabelle’s and Olivia’s for our review.

Therefore, we will not summarily reverse the appeal on this ground and it will be

decided on the merits.

[¶21.]         I.    Whether the circuit court erred in denying Appellants’
                     motion in limine to exclude evidence of Ruschenberg’s
                     abortion.

[¶22.]         Appellants argue that the circuit court erred in denying their motion in

limine to exclude evidence of Ruschenberg’s abortion. Appellants contend that this

evidence is unfairly prejudicial under SDCL 19-12-3 (Rule 403) and that it

irreparably tainted the jurors’ opinions of Appellants.

[¶23.]         Our review of evidentiary rulings is a “two-step process[.]” Supreme

Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d 474, 491.

“[E]videntiary ruling are only reversible ‘when error is demonstrated and shown to


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be prejudicial error.’” Id. (citation omitted). Accordingly, we first “determine

whether the trial court abused its discretion in making an evidentiary ruling[.]” Id.;

JAS Enters., Inc. v. BBS Enters., Inc., 2013 S.D. 54, ¶ 21, 835 N.W.2d 117, 125

(stating that “[t]his applies as well to rulings on motions in limine”) (quoting

Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62). “With regard to the

rules of evidence, abuse of discretion occurs when a trial court misapplies a rule of

evidence, not when it merely allows or refuses questionable evidence.” JAS Enters.,

Inc., 2013 S.D. 54, ¶ 21, 835 N.W.2d at 125 (quoting State v. Asmussen, 2006 S.D.

37, ¶ 13, 713 N.W.2d 580, 586). And, second, we determine “whether this error was

a prejudicial error that ‘in all probability’ affected the jury’s conclusion.” Supreme

Pork, Inc., 2009 S.D. 20, ¶ 59, 764 N.W.2d at 491. This Court has previously said:

                The rulings of the trial court are presumptively correct; we have
                no duty to seek reasons to reverse. The party alleging error must
                show prejudicial error . . . . To show such prejudicial error[,] an
                appellant must establish affirmatively from the record that
                under the evidence the jury might and probably would have
                returned a different verdict if the alleged error had not occurred.

Id. ¶ 58 (quoting Sander v. Geib, Elston, Frost Prof’l Ass’n, 506 N.W.2d 107, 113

(S.D. 1993)).

[¶24.]          SDCL 19-12-3 (Rule 403) provides in pertinent part that “evidence may

be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice . . . .” “Rule 403 is not simply a ‘more than, less than’ comparison;

the test is whether the probative value is substantially outweighed by the danger of

unfair prejudice.” Supreme Pork, Inc. 2009 S.D. 20, ¶ 55, 764 N.W.2d at 490. See

State v. Boe, 2014 S.D. 29, ¶ 25, __N.W.2d __, __ (overruling erroneous language in

State v. Chamley, 1997 S.D. 107, 568 N.W.2d 607, and stating that “[t]he correct

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test, as stated in SDCL 19-12-3 (Rule 403), is whether the ‘probative value is

substantially outweighed by the danger of unfair prejudice . . .’”). “The party

objecting to the admission of evidence has the burden of establishing that the trial

concerns expressed in Rule 403 substantially outweigh probative value.” Supreme

Pork, Inc., 2009 S.D. 20, ¶ 56, 764 N.W.2d at 490 (quoting State v. Mattson, 2005

S.D. 71, ¶ 20, 698 N.W.2d 538, 546).

[¶25.]       By admitting evidence of Ruschenberg’s abortion, the circuit court

cannot be said to have committed “a fundamental error of judgment, a choice

outside the range of permissible choices, a decision, which, on full consideration, is

arbitrary or unreasonable.” See id. ¶ 57 (quoting Hogen v. Pifer, 2008 S.D. 96, ¶ 9,

757 N.W.2d 160, 163). The evidence of Ruschenberg’s abortion had significant

probative value to the factual disputes in the trial. When asked on cross-

examination about the procedure, Ruschenberg could not recall when she had the

abortion nor could she recall where the abortion clinic was located in Sioux City.

Additionally, the evidence of Ruschenberg’s abortion had probative value as

evidenced by Ruschenberg’s inclusion of the abortion in her complaint. In her

complaint, Ruschenberg alleged that “[o]n or about August 2007, Ruschenberg

discovered that she was pregnant due to Eliason’s sexual assault of her.

Ruschenberg told Eliason about it and he wrote a check to her and told her to go

and get an abortion.”

[¶26.]       As the circuit court noted, Ruschenberg’s credibility was also at issue.

Ruschenberg and Eliason’s interactions following the alleged rape and prior to the

abortion were essential to evaluate her credibility. Ruschenberg testified that she


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approached Eliason about her pregnancy and Eliason told her that she had

“options,” including allowing Eliason and his wife to adopt the baby. Ruschenberg

also testified that Eliason offered her $450 to pay for the abortion procedure.

Eliason, however, testified that the $450 payment was an advance on her pay.

Additionally, Ruschenberg testified at trial that at the abortion clinic, she was

required to fill out various forms prior to the procedure. She testified that she

indicated that the pregnancy was not the result of a rape. Such evidence was vital

for the jury’s consideration as to whether Ruschenberg’s pregnancy was the result of

a rape.

[¶27.]       Finally, the evidence was probative for the jury in determining the

extent of damage Ruschenberg suffered as a result of the alleged rape.

Ruschenberg testified that the rape, her pregnancy, and the abortion all had an

emotional and psychological effect on her. Therefore, the jury had to consider the

pregnancy and abortion evidence when determining Ruschenberg’s damages from

the alleged rape.

[¶28.]       Appellants cite to Nichols v. American National Insurance Company

and Nickerson v. G.D. Searle & Company in support of their argument that

evidence of Ruschenberg’s abortion was unfairly prejudicial. Nichols v. Am. Nat’l

Ins. Co., 154 F.3d 875 (8th Cir. 1998); Nickerson v. G.D. Searle & Co., 900 F.2d 412

(1st Cir. 1990). In Nichols, a former employee sued her former employer, American

National Insurance Company, for sexual harassment and constructive discharge in

violation of Title VII of the Civil Rights Act of 1964. Nichols, 154 F.3d at 878. At

trial, the district court permitted, over the employee’s objections, American


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National to introduce evidence that employee had undergone an abortion, which

was against her religious beliefs. Id. The jury returned a verdict in favor of

American National and the employee appealed claiming that several evidentiary

rulings deprived her of a fair trial. Id.

[¶29.]       The Eighth Circuit Court of Appeals reversed. The Eighth Circuit

held, among other things, that the district court erred in admitting evidence of the

prior abortion because it “had very little probative value” and was not related to her

employment history at American National. Id. at 885. Additionally, the Eighth

Circuit noted that the abortion was remote in time having occurred in 1985, and

that the employee was limited to evidence from 1991 to 1993. Id. The Eighth

Circuit also determined that “[s]uch evidence tends to be highly prejudicial. That

Nichols had had the abortion even though it was against her religion increased the

likelihood that the jury would view her as immoral and not worthy of trust and

reach its verdict on such basis.” Id. The Eighth Circuit noted the district court

focused on the fact that Nichols had disclosed the fact that she had an abortion

herself, but stated that “she had had a duty to answer the interrogatory even if the

answer were not admissible at trial[.]” Id.

[¶30.]       In Nickerson, an intrauterine device user brought a product liability

suit against two manufacturers of the device. 900 F.2d at 414. Nickerson appealed

an unfavorable jury verdict based on a number of issues, including the district

court’s ruling that Nickerson’s counsel could not ask one of the manufacturer’s

experts about his previous work in abortion clinics and experiences in the field of

abortion. Id. at 415, 418. The district court excluded such evidence because the


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abortion evidence was not related to the issue of the expert’s qualifications in

intrauterine devices and it was unduly prejudicial. Id. The Court of Appeals

affirmed. Id. at 419.

[¶31.]         Both Nichols and Nickerson are distinguishable from the present

appeal. Unlike Nichols, where the former employee had a duty to answer the

interrogatory regarding her abortion, Ruschenberg disclosed the allegation of the

abortion in her complaint. Additionally, unlike the employee’s abortion in Nichols,

Ruschenberg’s abortion was not remote in time and was integral to the claims

asserted by Appellants. And in Nickerson, the expert’s previous work in abortion

clinics and experiences in the field of abortion were unrelated to the expert’s

qualifications regarding the expert’s knowledge about intrauterine devices. Thus,

such evidence was prejudicial.

[¶32.]         The evidence regarding Ruschenberg’s abortion was relevant and

probative to her claims against Annabelle’s and Olivia’s, including whether the torts

were committed, whether it resulted in damages to Ruschenberg, the nature and

extent of those damages, and the credibility of the witness. Accordingly, the circuit

court did not abuse its discretion in denying Appellants’ motion in limine to exclude

evidence of Ruschenberg’s abortion. 3



3.       Furthermore, even if the circuit court abused its discretion in admitting
         evidence of Ruschenberg’s abortion, Appellants cannot show that the circuit
         court’s ruling was prejudicial error. See Supreme Pork, 2009 S.D. 20, ¶ 58,
         764 N.W.2d at 491 (stating that “an appellant must establish affirmatively
         from the record that under the evidence the jury might and probably would
         have returned a different verdict if the alleged error had not occurred”)
         (quoting Sander, 506 N.W.2d at 113). Indeed, the jury returned a verdict
         against not only Ruschenberg, but also her co-plaintiffs, Cornelius and
                                                                          (continued . . .)
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[¶33.]         II.   Whether the circuit court erred in denying Appellants’
                     motion for mistrial based upon Johnson’s statement at
                     trial.

[¶34.]         Appellants argue that the circuit court erred in denying their motion

for mistrial. Appellants contend that not only was Johnson’s statement regarding

Eliason’s criminal history false, but the statement was in direct violation of

Annabelle’s and Olivia’s motion in limine, which was expanded by the circuit court

to apply to all parties. Further, Appellants argue that the curative instruction

provided by the circuit court was insufficient because “[t]he non-existence of

criminal charges [was] just as unduly prejudicial as the existence of criminal

charges.”

[¶35.]         “Trial courts have considerable discretion in granting or denying

mistrials and determining the prejudicial effect of witness statements.” State v.

Fool Bull, 2008 S.D. 11, ¶ 10, 745 N.W.2d 380, 385. “Only when this discretion is

clearly abused will this [C]ourt overturn the trial court’s decision.” State v. Phair,

2004 S.D. 88, ¶ 13, 684 N.W.2d 660, 665 (quoting State v. Anderson, 1996 S.D. 46, ¶

21, 546 N.W.2d 395, 401). In order “[t]o justify the granting of a mistrial, an actual

showing of prejudice must exist.” Id. “Prejudicial error for purposes of determining

whether error constitutes grounds for mistrial is error which in all probability must

have produced some effect upon the jury’s verdict and is harmful to the substantial

rights of the party assigning it.” Id.


         Rensch, who were not involved in Ruschenberg’s decision to have an abortion.
         Therefore, Appellants have failed to show prejudicial error in that “the jury
         might and probably would have returned a different verdict” had the
         evidence of Ruschenberg’s abortion not been admitted. See id. (emphasis
         omitted).

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[¶36.]       Here, the record is clear that the circuit court granted Annabelle’s and

Olivia’s motion in limine to exclude evidence of Johnson’s prior criminal history and

to exclude an alienation of affections lawsuit brought against Eliason. The record is

devoid of any instance in which the circuit court excluded evidence regarding

Eliason’s criminal history, or lack thereof. Appellants claim the motion in limine

was expanded to include all parties, but there is no record of a formal ruling by the

circuit court precluding testimony regarding Eliason’s criminal history.

[¶37.]       Moreover, after considering Appellants’ motion more thoroughly at a

recess, the circuit court then admonished the jury as was requested by Appellants’

counsel following Johnson’s testimony. The admonishment instructed the jury to

disregard Johnson’s testimony regarding Eliason’s criminal background and to base

its conclusion solely on the evidence presented at trial. The circuit court also

admonished the jury to “disregard any consideration of whether or not there were

criminal charges filed, a trial or a conviction or acquittal.” We presume that the

jury understood and abided by these admonishments accordingly. See State v.

Dillon, 2010 S.D. 72, ¶ 28, 788 N.W.2d 360, 369 (stating that we “presume that

juries understand and abide by curative instructions”). Thus, the circuit court did

not abuse its discretion in denying Appellants’ motion for mistrial.

[¶38.]       III.   Whether the circuit court erred in rejecting Appellants’
                    proposed jury instructions regarding the “alter ego rule.”

[¶39.]       Appellants argue that the circuit court erred when it rejected

Appellant’s proposed jury instructions regarding the “alter ego rule.” Appellants

assert that Eliason was “so dominant in” Annabelle’s and Olivia’s that liability for

Eliason’s acts would be imputed to the businesses under the “alter ego rule.” To

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support their argument, Appellants cite to the “alter ego rule” provided in Benson v.

Goble, a case analyzed by this Court under the context of workers’ compensation

law: “[T]o find [the corporation] vicariously liable for the acts of its supervisor in the

absence of notice, [the supervisor] must have been ‘so dominant in the corporation

that he could be deemed the alter ego of the corporation under the ordinary

standards governing disregard of [the] corporate entity.’” See 1999 S.D. 38, ¶ 18,

593 N.W.2d 402, 406 (quoting 6 Larson, Larson’s Workers’ Compensation Law §

68.22 at 13-130). Appellants contend that the jury should have been instructed

accordingly.

[¶40.]         In response, Annabelle’s and Olivia’s argue that Judge Riepel

dismissed the intentional tort causes of action against the businesses. In her

summary judgment order, Judge Riepel noted that counsel for Appellants

acknowledged that the intentional tort causes of action were directed solely against

Eliason and were not being asserted against Annabelle’s and Olivia’s. Annabelle’s

and Olivia’s also point out that during trial, Judge Tiede did not grant Appellants

leave to amend their complaint to include the intentional tort causes of action

against the businesses, 4 nor did Judge Tiede vacate Judge Riepel’s summary



4.       After extensive testimony was entered at trial, Appellants made a motion to
         amend their pleadings under SDCL 15-6-15(b) arguing that “[a] majority of
         the cross-examination has been on whether these events actually occurred or
         not. [Defendants] suffered no prejudice and the plaintiffs’ case is still open at
         this time so this motion is timely and proper to be brought at this time.” See
         SDCL 15-6-15(b) (providing in pertinent part that “[w]hen issues not raised
         by the pleadings are tried by express or implied consent of the parties, they
         shall be treated in all respects as if they had been raised in the pleadings”).
         Judge Tiede denied Appellants’ motion to amend their complaint to include
         claims that any intentional acts of Eliason should be attributed to the
                                                                          (continued . . .)
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judgment order. Annabelle’s and Olivia’s contend that any instruction regarding

the “alter ego rule” would have been beyond the scope of issues raised by the

pleadings. Additionally, Annabelle’s and Olivia’s argue that Eliason was not the

“alter ego” of the businesses, and therefore, the circuit court correctly rejected any

instructions as to the “alter ego rule.”

[¶41.]         Here, the jury returned a verdict finding Eliason not liable for the

alleged intentional torts. Thus, as a matter of law, the jury could not have found

that Annabelle’s and Olivia’s were liable under the “alter ego rule.” Our holdings on

the first two appealed issues and the jury verdict are therefore dispositive on the

issue of whether the jury should have been given instructions regarding the “alter

ego rule.” Appellants’ assertion of error regarding its proposed “alter ego rule” jury

instructions is therefore without merit.

                                        Conclusion

[¶42.]         The circuit court did not abuse its discretion in denying Appellants’

motion in limine to exclude evidence of Ruschenberg’s abortion or in denying

Appellants’ motion for mistrial based on Keith Johnson’s statements at trial.

Because our holdings on the first two appealed issues and the jury verdict are


         businesses under the “alter ego rule.” Judge Tiede determined that SDCL
         47-34A-302 was applicable and that the only reason the trial was concerned
         with whether Eliason’s conduct was in the ordinary course of business or
         authority of the businesses was because of the remaining claim asserted
         against Annabelle’s and Olivia’s—negligent infliction of emotional distress.
         Additionally, Judge Tiede acknowledged that it would be prejudicial and
         unfair to the defendants to, “at this late stage[,]” “shift the entire theory of
         the case again back to whether or not the acts of Mr. Eliason were in the
         ordinary course of business or within the authority of the company.” Judge
         Tiede’s denial of Appellants’ motion to amend has not been appealed to this
         Court.

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dispositive, Appellants’ assertion of error regarding its proposed “alter ego rule” jury

instructions is therefore without merit for our consideration. We affirm.

[¶43.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.




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