[¶ 1.] This opinion encompasses two separate appeals dealing with the same parties but involving independent issues and facts. Each will be addressed separately. In #24991, Cheryl Jacobson appeals the circuit court’s decision denying her request for attorney fees, and in # 24492 & # 24498, Kevin Leisinger appeals the circuit court’s dismissal of his defamation action against Jacobson.
JACOBSON’S APPEAL FOR ATTORNEY FEES
[¶ 2.] This dispute flows from our holding in
Leisinger v. Jacobson,
[¶ 3.] Despite our decision in Leisinger I, Leisinger did not return the $120,000 to Jacobson. She therefore moved the circuit court for an order requiring the return of the money. In a memorandum opinion of December 20, 2002, Circuit Judge Sever-son held that “on August 21, 2002[, the date of the decision of Leisinger I ], [Leis-inger] had an obligation to return the benefits he had received from the prior Judgment — $120,000—to [Jacobson].” Judge Severson entered a formal order to that effect on February 24, 2003. Leisinger did not comply with nor did he appeal that order requiring him to return the money. (Apparently, no formal notice of entry of the order was served upon Leisinger.)
[¶ 4.] Jacobson then sought a contempt order against Leisinger for his failure to comply with the February 24, 2003 order, but the circuit court did not rule on that motion. Jacobson later filed a formal notice of entry of the February 24, 2003 repayment order. Leisinger then appealed that order, however, therein he merely contested the award of interest. This Court summarily affirmed the order holding that Leisinger’s appeal was “without merit.” (Appeal No. 23287).
[¶ 5.] On November 24, 2003, Jacobson filed a conversion action against Leisinger basing her claim on Leisinger’s failure to comply with the February 24, 2003 order to return the $120,000. Leisinger counter-sued alleging many causes of actions, all independent of the money issues. The circuit court ultimately granted Jacobson’s summary judgment motion holding that Leisinger’s failure to return the money amounted to conversion as a matter of law.
[¶ 6.] While the foregoing conversion action was pending, Leisinger petitioned this Court for a rehearing of Leisinger I, and also sought to have Jacobson held in “contempt.” He contended that Leisinger I was founded on Jacobson’s perjured testimony. We denied the motion.
[¶ 7.] On December 21, 2004, Jacobson moved the circuit court for an order re
[¶ 8.] Jacobson then sought recovery of the attorney fees she incurred in the various court proceedings required to recover the $120,000. The circuit court rejected her request, citing
Schuldies v. Millar,
[¶ 9.] Whether the circuit court erred by failing to award attorney fees.
[¶ 10.] Jacobson argues that she has a right to recover the reasonable cost of attorney fees she specifically incurred in unwarranted legal proceedings to recover her wrongfully withheld property. We agree.
[¶ 11.] It is clear and undisputed that Leisinger wrongfully withheld Jacobson’s $120,000. Subsequent to Leisinger’s rejection of the reduced punitive damages award, in
Leisinger I,
the portion of the trial court judgment regarding punitive damages was vacated.
[¶ 12.] We conclude that Leisinger indefensibly and unlawfully withheld the $120,000. Judge Severson’s decision of December 20, 2002, granting Jacobson’s request for an order requiring Leisinger to return the $120,000 with interest, unequivocally informed Leisinger that his retention of the funds was unlawful. Moreover, Leisinger cannot argue in good faith that he believed the money could legally remain in his possession pending any appeals; indeed, in the original suit Leisinger acquired the $120,000, constituting the punitive damage award, via a writ of execution
prior
to
Leisinger I
reversing the same award. Leisinger may not now complain of being harmed by the forced repayment as he bore the risk by taking the money prior to completion of the appellate process.
Hasse,
[¶ 13.] Jacobson contends that although
Schuldies v. Millar, supra,
does not permit recovery of attorney fees for the actual
[¶ 14.] Generally, without specific authority to the contrary, attorney fees are not recoverable in civil actions. However, we agree with and now adopt the rationale that: “... in conversion cases, the reasonable and necessary expenses
incurred in recovering
the property are a proper element of damage. In such cases, the expense of recovery is a ‘further pecuniary loss’ recoverable under the Restatement rule.”
State v. Taylor,
[¶ 15.] Attorney fees are not generally recoverable in actions sounding in tort “except those fees incurred in
other litigation
which is necessitated by the act of the party sought to be charged.”
Grand State Property, Inc. v. Woods, Fuller, Shultz, & Smith, P.C.,
[¶ 16.] Recovery of attorney fees expended by Jacobson to force Leisinger to release her money may be analogized with the case of
Foster v. Dischner,
[¶ 17.] Additionally, although Jacobson’s action may have been pleaded in conversion, the lawsuit is more complicated than the typical conversion pleadings. Here, Leisinger defied multiple court or
[¶ 18.] We reverse and remand to the circuit court for proceedings consistent herewith.
LEISINGER’S APPEAL OF DISMISSAL OF DEFAMATION CLAIM
[¶ 19.] Leisinger initially sued Jacobson for malicious prosecution. The lawsuit was based on false information Jacobson allegedly provided to police which led to Leisinger being falsely arrested nine times. He prevailed in that action. In the summer of 2001, approximately thirty hours after the jury found for Leisinger in the malicious prosecution lawsuit, a 911 emergency call was placed from Jacobson’s residence. When the police arrived they were unable to locate her. Eventually, the sound of “moaning” led the officers to Jacobson who was laying face down in calf-high grass about thirty to forty yards from her residence.
[¶ 20.] Jacobson told the police that she heard an “alarm” alert and then was struck in the back of her head. She claimed to not know how she ended up face down in the grass. Detective Balfe examined Jacobson’s head and saw no signs of an assault: “there was no redness or swelling or bleeding or anything at the back of her head.” Therefore, no pictures were taken of the alleged injury.
[¶21.] An ambulance transported Jacobson to the hospital where Detective Balfe interviewed her. She allegedly accused Leisinger of attacking her, stating: “Kevin had something to do with this. I don’t have anything to prove it, but he had something to do with it.” After further questioning, she allegedly continued to accuse Leisinger of being responsible for the purported attack. (No criminal charges flowed from this claimed attack.)
[¶ 22.] In December 2003, based on these and other accusations related to the alleged 2001 attack, Leisinger sued Jacobson for defamation. This claim was contained in a permissive counter-claim to Jacobson’s unrelated conversion lawsuit filed against Leisinger. Jacobson moved for summary judgment based on Leisinger’s failure to bring the suit within the two-year statute of limitations.
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The cir-
[¶ 23.] Whether the circuit court erred when it dismissed Leisinger’s defamation claim.
STANDARD OF REVIEW
[¶ 24.] Our standard of review regarding summary judgment is well established:
[W]e must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
Cooper v. James,
The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. When faced with “ ‘a summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations^]’ ” It is well settled that “ ‘[s]ummary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact.’ ” Generally, a statute of limitations question is left for the jury; however, deciding what constitutes accrual of a cause of action is a question of law and reviewed de novo.
Id.
¶ 7,
ANALYSIS AND DECISION
[¶ 25.] Leisinger argues that the circuit court erred when it interpreted the statute of limitations for defamation actions as accruing on occurrence of the tort rather than his discovery. Moreover, he claims that application of the “discovery rule” would position his pursuit of this action within the statute of limitations.
[¶ 26.] The statute of limitation for a defamation action is provided in SDCL 15-2-15.
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Thereunder, a defamation lawsuit
[¶ 27.] Leisinger first argues that the “accrual” date of his cause of action for defamation, under SDCL 15-2-15, relates to the date when he, the victim, had actual or constructive notice of the defamation, citing
Strassburg v. Citizens State Bank,
[¶ 28.] As noted earlier, Leisinger’s cause of action for defamation is governed by SDCL 15-2-15. Generally the accrual date for a defamation action begins on the publication
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of the defamatory act.
Davenport v. City of Corning,
[¶ 29.] Alternatively Leisinger argues for the adoption of the “inherently undis-coverable” doctrine. He asserts that because the alleged defamatory material was statutorily confidential
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he cannot be charged with having knowledge of the acts until he had actual or constructive notice of the defamation, claiming that where the defamatory act is “secretive or inherently undiscoverable [due to the] nature of the publication” courts have permitted the more relaxed “discovery rule” for defamation.
Staheli v. Smith,
[¶ 30.] Leisinger’s appeal must fail because of the following. In Leisinger’s own affidavit he stated: “A Minnehaha deputy sheriff mentioned to me sometime during the
Summer of 2001
that Jacobson had alleged to law enforcement that I assaulted her at her home. I had nothing to do with this I did not assault her.” (Emphasis added). By Leisinger’s own admission he knew of the alleged defamation in the summer of 2001, yet failed
when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony, and cannot successfully complain if he is nonsuited or the court directs a verdict against him.
Miller v. Stevens,
[¶ 31.] The defamation claim was untimely and must fail. Leisinger failed to bring suit before the tolling of the statute of limitations.
[¶ 32.] We reverse and remand Jacobson’s request for attorney fees (#24991) and affirm the dismissal of Leisinger’s defamation claim (# 24492 & # 24498).
Notes
. Leisinger's attorney had actual notice of the hearing, and the record reflects that a woman who attended the hearing was determined to have been sent by Leisinger.
. On July 1, 2005, the money was deposited with the Minnehaha County Clerk pending an appeal of Judge Zell's order amending the original February 23, 2003 "order” to a "judgment.” This Court summarily affirmed Judge Zell's order. Jacobson did not recover the money until after the summary affirmance of the appeal.
. Jacobson also moved for summary judgment contending that no claim for defamation may be based on any communication made "[i]n any legislative or judicial proceeding, or in any other official proceeding authorized by law.” SDCL 20-11-5(2). The circuit court denied this motion. Although Jacobson filed a notice of review on the denial, we do not reach this issue for two reasons. First, denials of summary judgment motions do not con
. Pertinent portion of SDCL 15-2-15 reads:
Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within two years after the cause of action shall have accrued:
(1) An action for libel, slander, ...
. Black’s Law Dictionary defines publication, in the defamation context, as: ''[t]he communication of defamatory words to someone other than the person defamed.” 1242 (7th ed.1999).
. SDCL 23-5-11 states that information related to ongoing investigation may be withheld from the public. SDCL 23A-28B-36 plainly states that information provided to the Crime Victims’ Compensation Program is confidential. Jacobson's alleged defamatory statements were made to the police and to the Crime Victims Compensation Program.
. Although Leisinger claims his permissive counterclaim relates back to the filing of Jacobson’s conversion claim, effectively tolling the statute of limitations, this argument is without merit. Only compulsory counterclaims benefit from the relation back doctrine.
See
6 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1425 at 189-90 (West 1990). Indeed, even in the cases cited to this Court by Leisinger,
Aramony v. United Way of America
and
MacDonald v.
Riggs, permissive counterclaims are not permitted to benefit from the relation back doctrine.
Aramony v. United Way of America,