Bad Wound v. Lakota Community Homes, Inc.

34-26A-2, well the titles declared

misdemeanors. There no expres- is also

sion in either 34-26A-27 or 34-26A-2 ex-

cluding them general exception from the

by specifically making the failure to file a magistrate

criminal act. The judge cor-

rectly dismissed four count SDCL because

34-26A-27 does not proscribe criminal ac-

tivity. Affirmed in part reversed

part. MILLER, Justice, Chief

SABERS, AMUNDSON and

GILBERTSON, Justices, concur.

1999 SD 165 WOUND,

James D. BAD Plaintiff Appellant, HOMES, INC.,

LAKOTA COMMUNITY Appellee.

Defendant and

Nos. 20936.

Supreme Court of South Dakota.

Argued Oct. 1999.

Decided Dec.

summary judgment and to LCH remanded A detailed the action trial.1 more dis- surrounding this case cussion facts This is found our decision. case out of the termination of originated Bad from LCH and Wound for insubordination subsequent neglect filing of duties and his of against wrongful LCH termination trial, Following action. re- a verdict Bad turned in favor of Wound for $49,988, wages due for the remainder contract, by offset of Bad Wound’s his job. wages deciding earned his new damages award, jury was its not al- possible consider lowed to Bad Wound’s Therefore, future with LCH. jury’s damage calculation limited three-year trial, At to the contract term. LCH was disallowed credibility by pre- Wound’s senting habit of LCH’s Viken, Viken, of Pecho- D. Leach James and transitions Bad Wound’s failure to Dewell, ta, City, Rapid Leach & South claim confusion on of those transitions. Dakota, Attorneys plaintiff appel- appeal, On Bad Wound raises the lant. following issue: of Paul and Mark J. Connot S. Swedlund 1. Whether the trial court erred lim- Palmer, Nelson, Gunderson, & Goodsell iting period of Bad Wound’s re- Dakota, City, Attorneys for Rapid South covery damages three-year of to the appellee. defendant of term the contract? raises cross-appeal, [¶4.] On LCH AMUNDSON, Justice. following issue: (Bad Wound) [¶ 1.] James 2. Whether trial court erred in ex- appeals judgment against Lakota Com- cluding past of LCH’s evidence (LCH) munity claiming Homes and routine? limiting period erred in trial court damages three-year recovery of to the DECISION term of the contract. the trial denial of admis-

appealed court’s 1. Whether the trial court erred past limiting period Bad Wound’s habit and routine sion of recovery damages during prior nonconfusion Wound’s three-year transitions. We affirm. term the contract? allow the jury

[¶ 6.] Whether to FACTS beyond to consider the contract damages evidentiary ruling. This is the time that this term is an Our stan second Original- has come before of review of “a trial court’s evidentia- case this Court. dard ly, granting ry ruling we reversed the trial court’s of discretion.” abuse reversed, finding genu- appeal upon on the We The first based granting summary judgment LCH’s ine issues material fact did exist that re- Community in Bad Wound v. Lakota found quired jury trial to resolve. Homes, Inc., SD 576 N.W.2d 229. (Iowa ¶ 34, 1991)). Bailey, SD State N.W.2d See also (citations omitted). Cutler, (S.D. An N.W.2d Mash v. “ 1992) (noting abuse discretion is ‘discretion exer that in actions for breach contract, justified to an end or purpose by, cised “the plaintiff is entitled to recov clearly against, reason evidence.’ er all his determent proximately caused Inc., Kreiser’s, 761, by breach, Larson exceeding the amount (S.D.1991) Gross, (quoting 764 Gross he 355 would have gained by perfor full (S.D.1984)). mance”); (em Regan, N.W.2d 344 N.W.2d at 696 phasizing plaintiffs that recovery .the shall trial, [¶ 7.] At Bad Wound was re not exceed “the amount he would have damages his entire questing for work life gained by full performance”). expectancy, period an indeterminate case, In present the beyond time which would expi extend the (Second) argues that Restatement of Con- ration of his current written contract term. (1981) § tracts recovery allows of dam- justification claim damages His for this ages beyond three-year the contract term. upon by was based alleged comments the The Restatement states: negotiations. Board oral contract Wound that Subject contends to his to the limitations in stated contract, signing 350-52, §§ three-year the injured party the the right has a Board stated that if at end damages the to three based on his expectation an employee doing job his then by interest as measured the can be renewed for another (a) the in loss value to him of the other years. three interpreted Wound party’s performance its by caused granted these statements to have to him deficiency, plus failure or employment lifetime with LCH. (b) loss, any other including incidental loss, consequential or by caused the damages [¶ 8.] The issue of under a breach,less employment contract of is well settled. (c) Ass’n, Nelson any See v. WEB Dev. Water cost or other loss that he has Inc., (S.D.1993). 507 N.W.2d by This avoided not having perform. to Court has noted may “[n]o that Wound contends his “incidental greater recover a in damages amount for or consequential loss” would include his breach of obligation an than he could earnings loss of after June 1998. Bad gained by have full performance on both that, argues based upon Board’s 21-1-5). Id.(citing sides[.]” SDCL gratuitous oral comments which incorporated into the final written con- has [¶ 9.] This Court often stated “ tract, employment long his would be for as contract, ‘[i]n action for breach of as willing he was to remain as their em- plaintiff is entitled to recover all his Therefore, ployee. application §of detriment proximately by caused would allow him recover an amount breach, not exceeding amount he equal to the difference between wages his gained performance.’ would have full from and his wages $13.00 $7.82 Miller, Ducheneaux v. 488 N.W.2d employment his new for the rest (S.D.1992) Regan Moyle working his life. (S.D. Co., Petroleum 1984); Band, Williams, Big Larson, Inc. v. 87 S.D. Bad Wound cites Lex K. (1972)). 24, 28, Unjust 9A.02[1], authority § Dismissal goal awarding ultimate damages argument for' his application for (Second) “place injured § breach contract is to Restatement Contracts position or she party would have should allow him to recover damages be- occupied if the per yond three-year contract had been contract term. Nota- Id., Stinson, § bly, formed.” Macal v. 347 in Larson mentions the “con- $215,000 section,” University awarded fails and was general but

tract remedies deprivation three-year “application employ in the the section discuss $480,000 ment for decrease Lind Larson contracts” section. Id. at 1156. sey’s earning capacity. future notes: reversing damage award de employ- the breach of an Remedies for earning capacity, in future the court crease general follow the same ment contract “[djamages noted that diminution for the breach pattern as remedies earning power capacity or future are contract: remedies other in an for breach of an recoverable action expectations of designed protect the contract.” Id. at 1158. they entered into parties when “ addition, only that the it is ‘well settled Thus, if an agreement. legally binding damages may which be recovered under a definite employee working wrongfully been dis employee who has contract but is dismissed before term salary charged is the balance the due term, in damages expiration the of the employment under less the wages computed be form lost will the employee was to earn sums the able dur end of discharge from the time of ing period.’ the contract remainder of the contract term. Perry Apache Id. v. Ele Junction Raytheon § Subsid- 9A.02[2] Id. at 43, mentary Ariz.App. Sch. Dist. No. Crouch, Co., Inc. iary Support v. 548 So.2d 561, 514, (Ariz.App.1973)). 514 P.2d (Fla.Dist.Ct.App.1989); Berutti Lindsey damages The court in noted that Foods, Inc., 931, 99 Ill.App.3d Dierks earning capacity for in future decrease (1986). 775, 496 N.E.2d 350 See Ill.Dec. speculative. too Id. Ins. also Ward v. American Mut. Liab. Co., Bad Wound’s reliance on Restate- Mass.App.Ct. 443 N.E.2d 1342 (Second) (1983) § in a of ment Contracts 347 is (awarding employees breach request recovery of tort wages essence a dam- employment contract all express ages until end of in this contract action. trial they would have earned term). based properly instructed the contract law of this for deter- upon the settled state employment An case which dealt 12.] [¶ damages. mination of contract claimed future loss of income is Lind Arizona, University 157 Ariz. sey erred [¶ 2. Whether trial court In Lind (Ariz.App.1987). 754 P.2d 1152 excluding past LCH’s evidence of Lindsey was hired head men’s bas sey, as routine? University Arizona. ketball coach for the issue, LCH, in Lindsey orally had raised [¶ Id. at 1154. been This evidentiary ruling. of an appeal that “no one would be hired for also formed Therefore, coaching position apply than three to we the same standard of less years” University policy applied pro four “it review as issue one. LCH years posed a minimum of four to offer evidence at trial that on give coaches prior being Despite managerial Id. transitions before evaluated.” assertions, years only expressly employ oral written Wound’s seventeen LCH, Lindsey pro term of ment with he never claimed confu charge. in- Specifically, in a letter from the sion as to who was president vided years university prior period three to the time specifying his issue, 1982 and no later was terminated for- first July ending “effective CKJ 1983”; Wound, present employ a term of time and Bad unlike than June situation, day next year. completion reported for one Id. At the to work the ment season, Lindsey claiming any LCH con of the first was notified without confusion. prior tends that these situations of noncon- that his contract would not renewed. Lindsey brought against Id. at 1155. suit fusion constitute habit purpose have for the Mr. The supervisory position, should been admitted Connot: credibility employee and truthful- but he had been an there years. current claim of con- for 17 ness of Wound’s fusion. Well, just employee Court: is a little being supervi- different than trial, 16.] Prior to Bad Wound filed a argument you sor. That was the motion limine for the exclusion of the making, agree were and I with that ar- alleged habit evidence. argument, that it is. Consequently, gued time, that “such evidence is remote prior if management I changes, issues, raises numerous collateral and does they don’t think are relevant. not relate to Bad Wound’s situation Mr. Even Connot: CKJs termination in November 7 and none those they 1992? He’s testified did any employee situations have a fired in up and he showed contract like Bad Wound’s contract.” In next day. hearing, the motion in limine following Mr. Leach: That is three before. parties discussion occurred between the deal; It’s a different he doesn’t court: have a contract then. is, My Mr. Leach: motion we shouldn’t agree The Court: I he doesn’t have a be talking about contract changeovers happened that two years years years five ago, ago, ten

ago, things which is what all these grant- Court: in [Motion limine] is talking

are. We should about ed. management changeover. Pe- riod. If we it talk open up and ruling, In making its emphasized court years, about years, two five ten that Bad Wound did have a written really then opening we are up everything. changeovers did as he here. I think If Mr. Connot: don’t so. he argues that the issue rely wants to on the fact that preserved he was properly below for our - worked there for over 17 review. We find that it was. Under testimony, 19-12-8, his own Jim Bad SDCL Wound was there through person Evidence the habit or of of of previous change-ov- of an practice organization, routine fact, previous ers. termination regard- or not whether corroborated and CKJ, in of 1992 when CKJ eyewitnesses, the presence less of of before, every fired after once one prove relevant to that conduct times, absolutely those there was or organization particular on a no confusion about who he worked conformity occasion was in with up for. He showed work added.) habit or routine. (Emphasis I morning. [LCH] the next think We “[r]elevance have often noted that is a entirely that’s as wheth- relevant precursor admitting any evidence.” er or was confused (S.D. White, 237, 242 State v. 538 N.W.2d 9th, 6th November and November 1995). any tendency having “Evidence make the fact that is of existence ago you The Court: a little while consequence Just to the determination me, telling were side of probable probable other action more or less than it argument only is that he had would be without the is rele (other been in this vant.” supervising position (citing Id. SDCL 19-12-1 omitted)). three months. citation Once evidence is found enough are an inference relevant, must determine ‘numerous base then court ”). conduct’ prejudice systematic danger unfair “whether substantially outweighs probative value LCH relies our discussion availability ‘in view of the of the evidence held in which we that evidence of Larson proof and the other other means corporate employee’s conversion of (Rule 403).” 19-12-3 under SDCL factors (checks) relevant to his funds credibili- Advisory (quoting FRE Commit Id. at 243 and ty of his truthfulness 404(b); to FRE Rule State v. tee Note jury. should have been before (S.D.1991)). Basker, that be- 764. LCH contends credibility are is- cause truthfulness Berwyn, City In Kavales v. case, in this our decision Larson sues Ill.Dec. 712 N.E.2d Ill.App.3d find LCH’s reli- apply. should We (1999), action per to recover misplaced. on Larson is The issue ance city from the after injury damages sonal ad- us Larson whether the before Drost, decedent, Diana fell plaintiffs specific of conduct mission of instances Kavales, public alley. the court noted the purpose witness admissible for ... evidence of an individual “[h]abit credibility supporting or prove that the conduct in is admissible to Presently, under SDCL 19-14-10. we conformity such question was in situations faced with whether certain practice.” Id at 851 or routine span which occurred over a seventeen- Community Hosp., v. Roseland Collins year employment enough reoccurred often Ill.App.3d Ill.Dec. enough uniformity and simi- contained (1991)). The court not N.E.2d larity pattern as to constitute evidence introducing orga ed evidence of an or of conduct habit under SDCL 19-12-8. “ practice, routine ‘evidence nization’s specific, trial found that sufficiently [tf must be detailed changes the and prior managerial and the situations involved must be similar termi give sufficiently to similar es enough to rise a reliable infer nations not to pattern Id. tablish a of conduct or habit. This ence.’ Brennan Wiscon Central, Ltd., upon em Ill.App.3d sin 169 decision based Bad Wound’s (1992)). ployment not similar to his being Ill.Dec. 591 N.E.2d 494 “Evi status manageri the of an ... at the time of the current dence of habit individual status al a regular response change, an act that is Bad Wound did have describes during manage repeated specific prior to a situation so that the written contract the transitions, rial and there was a act semi-automatic and of virtual different becomes ly regularity.” M. LCH Board involved all the instances. invariable Id. Graham, If Cleary & evidence is not relevant to the causes of Graham’s Handbook (6thEd. 1994)). alleged, § 406.1 action it is not admissible. See Illinois Evidence Schumacher, the testimo The court found that witness’s Darrow (S.D.1993). sufficiently specific or In Imwinkel ny “was not detailed Edward J. ried,. Evidentiary of a routine Foundations the au enough to establish evidence practice.” Finally, Id. thor notes his discussion of habit evi “[without business pattern that “if the is specific concerning more information the dence behavioral testimony], specific enough the and the numer witness’s instances [for [the basis conjecture enough, judge jury ... ous allows the testimony] was mere the speculative Loughan Id. also infer the existence of habit.” See also best. See Co., Notes, Advisory Rule Fed. v. Firestone Tire & Rubber F.2d Committee ¶ 2 (11thCir.1985) (stating that (holding that ex R.Evid. habit “describes spe alleged only regular response repeated habit one’s amples to constitute added). situation”) (emphasis To offered to examples admissible “when [the] cific habit, be or evidence must pattern establish such conduct habit constitute justify receiving similar to a “re ue to it into In sufficiently constitute evidence. words, other peated specific situation” and rise to a does admission lack of reviewing eight level behavior. Wound’s confusion of habitual record, prior to show transitions have ten- the evidence fails dency prove Bad Wound was not managerial were “suffi changes probable confused in this instance more ciently present to the situation so similar” than it as to a level of behavior.” would without evidence? “rise to habitual clearly “yes.” The answer is ascer- upon inadequate showing Based on tainment issue, trial of whether Bad Wound was actu- court did abuse its ally confused in this instance is excluding indisput- discretion in this evidence. ably the ultimate issue in this case and affirm. [¶ 21.] We applies to Bad Wound’s intent knowl- edge. value of the habit MILLER, Justice, [¶ Chief substantially outweighed evidence is not GILBERTSON, KONENKAMP and prejudicial its effect. If Bad Wound Justices, concur. was not confused SABERS, Justice, in part concurs really confused this instance? The in part. and dissents answer is for a to determine. It was an abuse of discretion to SABERS, (concurring Justice in part determine evidence of dissenting in part). prior managerial transitions LCH endured trial court in prevent- [¶ 24.] The erred while Bad was an employee, ing “from Wound’s did not inadmissible and rise to level of credibility presenting [and truthfulness] habit Habit evidence. evidence defined habit evidence of LCH’s prior transitions as: and Bad Wound’s failure claim confu- of person Evidence of or of sion on those transitions.” organization, of an practice routine [¶ 25.] LCH offered “that regard- whether corroborated or eight prior managerial transitions presence eyewitnesses, less of the Wound’s prove relevant to that the conduct of the LCH, he never claimed confusion as to organization particular or on a fact, charge.” who was in only three in conformity occasion was with the hab- before, years CKJ was fired the first it or practice. routine time and Bad Wound to work reported (Rule 406). Although SDCL 19-12-8 any next day claiming without confusion. “habit,” Advisory rule does not define Clearly, [¶ this 26.] evidence is relevant to Rule of Evi Committee Note Federal to truly establish that Wound was not dence quotes Professor McCormick’s “confused” about whom he worked for on description of habitual behavior as “con November 7 and Relevant evi- semi-automatic, sisting of almost involun dence is defined as: tary invariablfy] responses specific to tendency having any [E]videnee to make fairly specific stimuli.” Rule “What of of existence fact that is conse- repetitive seeks to admit are those kinds of quence to determination the ac- provide strong proof acts that of conduct probable tion probable more or less than on a specified danger occasion without the it would be without the evidence. of bogging down the trial in collateral is (Rule 401). unfairly prejudicing SDCL 19-12-1 The determi- sues or case of one relevancy Graham, nation of hinges parties.” Wright on whether the possesses § evidence sufficient val- Federal Practice and Procedure 5273.2 additionally provides: 2. This treatise courts have reluctant "One of reasons the been to 1993) Bowman, A. Hawaii Rules ‘precise are no standards’ “Although there 406-2, § 122-24 Manual Evidence pat a behavior determining whether 1992) (other (1990) cita habit, (Supp. at 8-10 & into two factors a tern has matured omitted)). part determinative tions a rule: ‘ade controlling as are considered is in and of frequency, this not equation uniformity re sampling quacy itself, consistency regularity., but Newman, 982 States v. sponse.’ United denied, (1stCir.1992), cert. F.2d tran- managerial There nine [¶ were 126 L.Ed.2d 28 114 S.Ct. 510 U.S. throughout employ- Bad Wound’s sitions (citations omitted). (1993) eight During LCH. the first ment with transitions, consistently to re- how divided Wound [¶ 28.] Courts fact, In ported regular to work basis. many prior of identical behavior instances incident, three before this CKJ in order to demonstrate must be shown did Annotation, fired the first time and Wound P. Ludington, habit. See John report for not even hesitate to work Evidence Un- Habit or Routine Practice appeared For 17 there to day. next W6, Rule Evidence der Uniform for. (1988). question whom worked no 567, 598-601 Rule 406 A.L.R.4th managerial All of these transi- a minimum specify not number does unquestionably similar to tions are of conduct to establish a specific instances place took managerial transition fact, Advisory Committee’s habit. 1995; however, November Rule of Evidence cites Note to Federal transi- alleges to be confused on ninth v. Lockheed Air- approvingly Whittemore tion. 737, 151 Corp., Cal.App.2d P.2d craft (1944), in which evidence that a a-case rule, general As a evidence had, occasions, pi- on four decedent admissible as circum- habitual behavior is factory to planes loted defendant’s proof that the habit followed stantial was admit- place decedent’s in question. on the occasion The evidence prove piloted to that he probably ted that Bad was not confused about crashed, everyone on killing plane employer previous who probably possible, It nor is board. eight managerial transitions of- would be precise proper, prescribe it number prove that Bad Wound was fered to depends on the nature of because much ninth transition. confused in question. the behavior that Bad evidence is sufficient establish transi- response Wound’s Wittekind, Chomicki [¶29.] “semi-automatic, invol- tions was a almost (Wis. 564-65 Wis.2d invariabl[y] specific responses untary and Ap Wisconsin Court of Ct.App.1985), the Therefore, it is fairly specific stimuli.” peals held that four incidents conduct relevant and admissible as two-year period properly ad over under Rule 406. key “[t]he mitted as habit evidence: issue to, how many incidents are testified granted The trial the Bad probative they but how relevant in limine Wound’s motion because case bar.” Another court has also con- Wound did not have an pointed “[t]he out: sheer number transi- tract LCH with particular impor tions, conduct is instances of did have a contract but habit, per a but establishing tant factor in on November and 8 of 1995. transition important employ- evidence from had an haps even more is The fact that consistency and in instance is immateri- which inference ment contract this Wound, never variability al to the that Bad who point can be drawn.” State Keleko (Haw. lio, preced- n.9 had an 74 Haw. P.2d respect to issues in “habitual than admit evidence driving drunk” or has habit of reckless the case.” may prejudicial be more that such evidence ing never before contested that and the trial court clearly erred denying the jury properly the evidence to decide it. worked for LCH. The trial court abused in granting its discretion the mo- I 34.] vote to reverse and remand for tion in taking limine and the ultimate issue a new trial. in this the jury. case from entirely

Where the evidence is circum-

stantial[,] party should be deprived

of competent, relevant evidence because

it of great strength. is not Many may rope.

threads make a

Whittemore, 151 P.2d at 678. indicated,

[¶ 33.] As Bad Wound’s credi-

bility was the ultimate issue3 this case irony case is that it summary judgment has been to based on the same evi- Supreme the South Dakota twice Court with- dence jury it excluded from out having the real issue ever been decided II. should decide this case on all the I, jury. In Bad Wound the trial court was evidence instead of the trial court or this impressed granted so in LCH’s deciding favor it part it on evidence.

Case Details

Case Name: Bad Wound v. Lakota Community Homes, Inc.

Court Name: South Dakota Supreme Court

Date Published: Dec 29, 1999

Citation: 603 N.W.2d 723

Docket Number: None

Court Abbreviation: S.D.