*1 fact, she that at the time ties. testified letters, she had no informa-
she wrote the by Aponte contact
tion about sexual are not in the Even these letters
inmates.
record. that Clearly, allegations all of the
complaints of sexual contact were made to
prison were unsubstantiated and personnel showing com-
there was no these
plaints any were communicated to anyone responsible report
defendants or
to them. summary, there was no show- of material
ing issues fact summary judgment
existed and should be
affirmed.
KONENKAMP, (concurring Justice
part concurring specially part). & 1, I On Issue concur with Justice special writing to
Sabers’ the extent plaintiff has failed to show that correc-
tions authorities pris- were aware complaints guard’s
oner about the sexual majority
assaults. I concur with the
Issue 2.
Reuben C. Appellant,
Plaintiff and AKINS,
Robert M.D. and Great Plains Care, P.C.,
Sinus L. Randall Stew-
art, Appellees, Defendants and Setliff,
Reuben C. M.D. and Micki
Schmidt, Additional
Defendants.
Nos. 21041.
Supreme Court of South Dakota.
Argued Jan. 2000. Sept.
Decided
Mark E. Salter and Kent R. Cutler of Cutler, Mickelson, Falls, Donahoe & Sioux plaintiff for and appellant. Sanford, Leonard,
Steven W. A. Karen Cadwell, A. Michael Henderson of Sanford, Falls, Garry, Deibert & Sioux appellees defendants and Great Plains Si- nus Care. Meierhenry
Mark V. and Clint L. Sar- Danforth, gent Meierhenry & Meierhen- ry, Falls, Sioux appellee defendant and Randall Stewart.
SABERS, Justice. (Set- In
[¶ 1.] Issue Dr. Reuben Setliff liff) appeals the trial court’s granting of summary judgment to Dr. Robert Akins (Akins) and Great Plains Sinus Care (Great Plains) on his claims for breach of duty loyalty, breach of unfair $7,000 to his house down applied to be and enforcement conspiracy, competition, appeals payment. also Setliff obligation. loan of a in fa- summary judgment granting contacted Bender Stewart Jean (Stewart) on vor of Randall Stewart (Bender), attorney at the firm of Dav- expec- with business interference claims of Evans, & enport, Hurwitz Smith Sioux In Issue conspiracy. tancy and Falls, Dakota, to have a draft of South summary judgment the denial of appeals prepared. Akins’ In Issue for libel. on Akins’ counterclaim not been The had summary granting appeals began finalized when Akins work at Clinic claim breach of contract judgment on his ultimately left his April on Stewart 2 and We affirm Issue against Setliff. in May as consultant for Clinic position Issues and 3. reverse and remand finalizing without ever a written em- ployment agreement for Akins. FACTS after Within one to two months 1997, Akins, early practicing Clinic, joining Akins became dissatisfied otolarynologist1 Salt board-certified began contemplating leaving Clinic Utah, at a continu- met Setliff City, Lake practice. start his own Akins continued Falls, in Twin course ing medical education working approximately with Setliff for nine that he was informed Setliff Idaho. Akins a written contract ever months without practice and leave his current anxious to Finally, January being finalized. with Akins join Setliff discussed another. after approximately nine months Falls, in Sioux practice that he had his own the first draft of his em- Akins received addition, indicat- Dakota. South contract, he received the second ployment moving to of Akins Sioux prospect ed the *6 Bosdorf, a consultant hired Craig draft. (Clinic). join clinic Falls to Setliffs Clinic, by sent Akins the second draft in traveled to Sioux Falls Akins [¶ 3.] substantially differ- which contained terms February Akins 1997. On February of in Febru- from those terms discussed ent several issues relat- discussed and Setliff sign the ary 1997. Akins refused to with employment ing potential to Akins’ to drastic differences second draft due its orally agreed begin to Akins Setliff. February in 1997. the oral from April on 1997. working with Setliff con- Akins’ dissatisfaction at Clinic [¶ 6.] between Akins During negotiations the contemplated leaving Setliff, again and he in twen- tinued promises made Setliff He had never practice. his own wrote to start ty-seven different areas. Setliff bonus,2 no written production received twenty-seven topics all down in his notes signed, and contract had been Prior to with Akins. which were discussed was extreme- Falls, level the office the tension Akins had intended moving to Sioux conflict be- Setliff, due to the constant by ly high but the in a home owned to live coor- paramour/clinic and his Akins’ move. tween Setliff just prior to home sold (Schmidt). dinator, Akins Micki Schmidt purchase, a home to but Akins had found by that Schmidt also informed Stewart money for the down was enough not have did Clinic, circulating false rumors Stewart, had been a consultant for payment. with a medical having was an affair situation Akins about Atkins’ approached Setliff assistant. provide to Akins with agreed and Setliff ears, Ap- for the clinic. specified level of revenue otolaryngologist the deals with 1. An nose, receiving Collegiate key the bonus is not parently, Webster’s New the to and throat. (1974). care, Dictionary quanti- quality patient but generated. ty of revenue production would have allowed 2. The bonus generating a bonus after Akins to receive January hearing, granted summary Akins discussed trial court Akins, Plains, possibility leaving judgment to with Stewart Great discussions, After these Akins de- Stewart on all of Setliffs claims. In addi- Clinic. tion, practice. granted partial summary to leave and start his own the court cided meeting prospective began judgment Akins Setliff on Akins’ breach of financing his new busi- claim third-party lenders to discuss and his claim Akins in alleging liability defamatory ness. Stewart assisted the for- vicarious Akins incorpo- ap- mation of his new clinic. statements made Schmidt. Setliff clinic, Plains, raising rated his new on peals, following Great issues: If, February February 1998. On 1. Did the trial court err in granting copies delivered of his resignation summary judgment against Setliff and several letter Setliff administrative on all of his claims.
employees of Clinic.3
denying
Did the trial court err in
Following
resignation
Akins’
from
summary judg-
Setliffs motion for
Clinic, patients
asking
contacted Clinic
ment on Akins’ libel claim.
why
longer working
Akins was no
there.
appeals raising
following
Akins also
In March
Setliff drafted
mailed issue:
explaining
departure
a letter
Akins’
from
granting
3. Did the trial court
err
patients
Clinic to
Falls
Sioux
and Dako-
summary judgment
Setliff
Dunes,
ta
Dakota. Dr. Peter
South
Doble
Akins’ counterclaim for breach of
Idaho,
Falls,
of Twin
and Dr. Jim Dennin-
employment contract.
Columbia, Missouri,
ghoff
also swore
they
affidavit that
had received
copies
STANDARD OF REVIEW
the letters sent from
patients;
Our
standard
review for sum-
however,
they
how or from whom
received
mary judgment
briefly
is settled and
the letter was not disclosed.
‘whether a
issue of material fact
7, 1998,
April
brought
[¶ 9.] On
exists and whether
law
correctly
against
suit
Akins and Great
claim-
Plains
Wilka,
applied.’ Manuel v.
2000 SD
ing
breach of
breach
Parme-
duties,
fiduciary
loyalty
unfair com-
Hildebrand,
ly
petition, interference with business rela-
*7
(citations
omitted)).
N.W.2d
715-16
tions, conversion, and conspiracy. Setliff
brought
against
also
action
Stewart
for
1.
WHETHER THE TRIAL
wrongful interference with business rela-
COURT ERRED IN GRANTING
tions, wrongful interference with a con-
SUMMARY JUDGMENT AGAINST
tract
civil conspiracy.
Akins and
SETLIFF
ON
HIS
CLAIMS
Plains
brought
Great
counterclaims
AGAINST AKINS AND STEWART.
Schmidt,
against Setliff and
alleging
A. Breach Employment Contract
breach
contract and libel.
All parties moved for summary judgment
[¶ 12.] The trial court
held
partial summary judgment.
or
After
no employment contract existed between
resignation
3.
weekly.
Akins’
letter to
you
generous
Setliff states in
This still leaves
pertinent part:
margin
profit
and will allow a smoother
transition for Setliff Clinic.
Reuben,
you
expect
If this is of interest to
I will
twenty
written confirmation within
four
respect
you
Out of
for
and in the interest
Failing
nega-
hours.
this will be taken
aas
patient continuity
my
of care I will offer
response
my
tive
and I will consider
associ-
professional
continued
services for the next
with
ation
Setliff Clinic terminated.
thirty days
following stipulation.
with the
I
expect my
salary paid
month's
in advance
per surgery
$1500
performed payable
Sincerely,
Robert A. Akins
Akins,
totality
no breach
parties’
and therefore
of the
conduct
to learn
implied
have occurred. This was error. whether an
contract can
could
be found.”
(citations omitted).
contract is
provides
“[a]
53-1-3
See also
SDCL
Lien v.
Pullen,
implied.
express
An
express
McGladrey
either
&
one,
(S.D.1993)
terms of which are
contract
423-24
(providing that an im-
in
An implied
plied
stated
words.
contract is
contract is inferred from the conduct
one,
of which are
parties).
the existence and terms
of the
an
by
manifested
conduct.” We defined
Here,
totality
implied
Spring
Creek
Weller
parties’
reasonably
conduct
indicates as
Resort, Inc.,
(S.D.
parties
sent that the
intended to be bound
1991):
by the terms
implied
of an
contract.
‘A
implied
contract is
in fact where the
began
Akins
working at the Setliff Clinic
by
intention as to it is not manifested
April
on
1997 and delivered a
copy
explicit
parties,
direct or
words
resignation
letter to Setliff on Febru
gathered by implication
but is to be
ary
months,
During
1998.
those ten
proper deduction from the conduct of
specific
existed,
of employment
terms
un
used,
parties, language
or acts done
der which Akins received: an annual sala
them,
circum-
pertinent
or other
ry,
comprehensive
package,
benefits
mal
attending
stances
the transaction.’
insurance,
practice
reimbursement
Mahan,
Mahan v.
S.D.
moving expenses, permission to use Set-
(1963)).
215,121
N.W.2d
personal
liff s
airplane
purposes and a
In determining
whether
leased 1997
Expedition.
Ford
These
exists,
this court held
terms were indicated
the notes Setliff
pertinent inquiry
is whether
took during employment negotiations
“[t]he
properly
facts and
may
disputed
circumstances
evaluated Akins. That there
be
claims
permit an inference that services were
of additional terms is immaterial to sum
expectance by
receiving mary
rendered in
judgment
simply
one
a matter for
making compensation.”
and the other of
the jury to determine in due course.
Mahan,
at
parties
only negotiated
80 S.D.
N.W.2d at 369. These
in good
not
faith,
Clearly,
they
this is the situation here. Fur
obviously
agree
but
reached an
“
thermore,
objective
contract;
the ‘facts are viewed
ment and an intention to
other
wise,
ly
party voluntarily
and if a
indulges
not
reported
would
have
reasonably indicating
April
conduct
assent he
work
the Setliff Clinic
may be bound even
conduct
though
Once there
on the terms
truly express
does not
the state of
‘a
his of
contract is formed even
” Weller,
(quot
mind.’
at 841
though
parties]
adopt
intend to
a for
[the
ing Federal Land Bank
v. mal
Omaha
document with additional terms at a
*8
”
Houck,
449, 463,
213,
Kroupa,
68 S.D.
4
date.’ Kroupa
N.W.2d
later
v.
1998 SD
¶
(1942)). Therefore,
4, 39,
208,
219-20
we
214 (Konenkamp,
must close
574 N.W.2d
Justice,
ly examine the
in
concurring
part
concurring
course of conduct between
“
result) (citations omitted).
parties.
‘[c]onducfi
The
can be both
in
“Even when
nature,
By
very
parties change
acts and words.
its
an
their minds between the
implicit agreement is not as
a
time of
...
it
agreement
detailed as
oral
and when
is
formally negotiated.”
writing,
written
to be reduced to
is
[contract]
¶
26,
Regennitter,
In re Estate
binding.”
nonetheless
Id.
40. Obvious
of
920,
(quoting
ly,
implied
589
924
can
N.W.2d
Jurrens
be inferred
Co.,
49, 9,
Mfg.
presented
v. Lorenz
1998
from the circumstances
here.
SD
578
151,
N.W.2d
154
Mathews v.
Lutheran
(quoting
See St. John’s First
Church
Co., Inc.,
Storsteen,
725,
Twin City Const.
77 S.D.
(S.D.1984))).
500,
(1957) (stating
507
“We look to the
727
that the distinction be-
reviewing these
[¶ 19.]
is
contracts
express
tween
jurisdictions,
mani-
in
it is
in
mutual assent is
of cases
other
way
types
“the
fested.”)-
extremely fact-sensi
they
are
obvious
clear, however,
employ
that the
It is
tive.
however,
compelling,
is
More
[¶ 15.]
employer,
duty
loyalty
a
of
to the
ee owes
in
answer
by Akins
admission made
not,
employee must
while em
and the
April
[Akins]
“in
counterclaim:
contrary
employer’s in
act
to the
ployed,
employee
and that
[Setliff]
became an
of
proposition
clear is the
Equally
terests.
in IV and VI
alleged
of the terms
some
to make “ar
employee
that the
is entitled
terms of the
were
Dr.
See Si
employment by
Akins.”
[Setliff]
between
for some new
rangements”
309,
Kidd,
73 S.D.
mons
given
and should be
some
competitor
a
(stating that “no
regard.
in this
See Restatement
latitude
fact
to establish a
required
evidence is
(Second)
§
Agency
393 cmt. e
of
answer.”).
of
by
The basis
[the]
conceded
the termi
(providing that
before
“[e]ven
breach
Akins’ counterclaim is
is
agency,
employee]
[the
nation of the
contract.
existing employment
ed
arrangements
compete,
to make
entitled
Therefore,
in
parties agreed
both
because
however,
to solicit
[he
not]
...
is
entitled
that an
con
pleadings
their
such rival business before
customers for
existed,
in
an unmistakable
tract
is
other
employment [or]
the end of his
do
by an
by
sides to be bound
tention
both
competition
similar acts
direct
Therefore,
it
is
employment contract.
business.”). Therefore, while
employer’s
that there was no
nonsensical to conclude
employees may lay plans and take limited
“meeting
par-
of the minds” between the
steps
begin competing
with their em
In re Estate
ties to contract. See
go too far risk
ployers, employees who
(S.D.1993)
Eberle,
violating
duty
loyalty.
their
We ac
(providing that a contract is enforceable
“
have, that
‘the line
knowledge, as others
possible
to “ascertain the full
when
preparation
mere
from active
separating
certainty;
...
meaning with reasonable
competition may be difficult
discern
(cita-
is not
certainty
required.”
absolute
Service, Inc. v.
some cases.’
Jet Courier
omitted)).
tions
(Colo.1989)
Mulei,
771 P.2d
wholly inappropriate
This issue is
“competing policy
consid
(recognizing
summary disposal.
honesty
dealing
and fair
on the
erations
vigorous
free and
economic
one hand and
Duty Loyalty
B. Breach of
other”) (quoting Mary
on the
competition
Pursuant
to South Dakota
Metals,
Metzner,
land
Inc. v.
282 Md.
law,
employees
statutory duty
all
have a
(1978)).
rate,
any
At
382 A.2d
n.3
who has
loyalty:
employee
“[a]n
clearly jury question.
it is
account,
business to transact on his own
similar to that entrusted to him
Obviously,
is the nature of
‘[i]t
employer,
always give
must
the latter the
employee’s] preparations
sig-
which is
[the
preference.”
SDCL 60-2-13. Whether
determining
nificant’
whether
breach
a breach
employee’s actions constitute
has occurred.”
Bancroft-
duty
question
fact to be
Glen,
Whitney Co. v.
64 Cal.2d
jury.
Rehabilitation
determined
(1966)).
Cal.Rptr.
411 P.2d
*9
Specialists,
Koering,
Inc. v.
Intern.,
In Bushman v. Pure Plant Food
(Minn.Ct.App.1987).
(S.D.1983),
Ltd.,
762, 763-64
presented
court was
with
similar
this
may
While the lack of resistance
employ-
an
parties
fact situation. The
had
material,
be
the standard of review is
a writ-
relationship,
ment
but did not have
material fact
whether
issues of
the duration
agreement setting
within
ten
forth
exist
the record.
assistants,
non-competition
or a
clause. The three
two of which
previously
were
employer,
while
for
employees,
employed
employed at the Setliff Clinic. Akins testi-
competing
discussed the formation of
fied that
told
he
at least one of the assis-
interest,
business and solicited
from em-
that
legally
tants
he could not
offer her a
employees,
customers and
in their
ployer’s
job, but that
leaving
he was
an
opening
In upholding
new business venture.
practice.4
his
He also
that
testified
fifteen
jury
employer
duty
of
award
breach
percent of his clientele consisted of Setliff
loyalty,
court
stated:
patients.
Clinic
See A & L Scientific
Although
flatly
SDCL 60-2-13 does not
Latmore,
Corp.
265 A.D.2d
prohibit employees
pursuing
from
their
N.Y.S.2d
“
(stating that
interests,
own
require
employ-
does
an
employee may
‘[a]n
solicit an employer’s
prioritize.
ee to
An employee
pre-
must
only
customers
when
rela-
employer’s
his
business interests to
fer
tionship has
(quota-
been terminated.’
his own.
omitted)).
tions
pre-
This evidence was
added).
at
(emphasis
Id.
We also
which,
sented to the trial court
without
case,
examined Rhode Island
which held
explanation, granted summary judgment.
“pretermination
of an
solicitation
em- However, whether Akins
went too far
ployer’s
loyalty
is a breach of
customers
preparing
compete
with Setliff and
employer.”
(citing Rego
whether he solicited Setliff
employ-
Clinic
Fournier,
Displays, Inc. v.
R.I.
ees and
questions
customers are
of fact.
(R.I.1977) (other
4.
communicating
soli-
competing
and to start his own
business.
citing
hiring employees of
and/or
Setliff;
employed by
Setliff while still
competi
The tort of unfair
tion
specific
does not have
elements.
In
Secretly
communicating with or soli-
stead,
general category
“it describes a
citing patients of Setliff while still
recognize
pro
torts which courts
for the
employed with Setliff.
tection of commercial interests.”
Id. at
added).
(emphasis
(citations omitted). Therefore,
305-06
damages
At
for unfair competition
the time of Akins’
results
22.]
deposition,
employed
Great Plains
from satisfying
underly-
three
the elements of an
dissent,
4. Whether the
employee
co-workers of Akins were at-
at-will
can have
im-
employees,
dispositive
will
not
“is
plied
employer
on other
duty
loyalty analysis.”
breach of
Couri-
Jet
terms.
er,
fact, contrary
ing tort. See United
(Minn.1982)
(3)
628,
consent;
Nelson,
purpose for
they
632
must
(4)
lawful;
tortious interference
(providing that
contracting must be
use of trade secrets
improper
or consideration.
must be sufficient cause
a claim for unfair
for
can be the basis
implied
An
contract must
53-1-2.
SDCL
competition).
elements, however,
satisfy all four of these
imposed
not
additional elements are
of
employee’s
“An
breach
[¶ 25.]
just
they
because
are not
implied contracts
may constitute unfair
duty
loyalty
his
of
writing.
Phegley
Phegley,
in
629
See
Specialists,
competition.” Rehabilitation
(uphold-
(Ind.Ct.App.1994)
N.E.2d
Sanitary Farm
(citing
889 Conspiracy E. appeal granting summary Civil did not Akins, judgment to he did appeal the sum- Setliff sued both Akins and [¶ 31.] mary judgment to Stewart. The trial conspiracy. Stewart for civil court concluded that because there was no [¶ 35.] The elements for this Setliffs cause of ac cause of action are: conspiracy Akins for civil against tion fails. (1) the existence of a valid business re- In order a
[¶ 32.] to establish lationship expectancy; or prima a conspiracy, plain facie case civil (2) knowledge by the interferer of the tiff prove: must relationship expectancy;
(1) persons; two or more (3) unjustified an and act intentional (2) object accomplished; to be part interference on the of the inter- ferer; (3) meeting object a of the minds on the taken; or course of action to be (4) proof that the interference cause[d] sustained; the harm and commission one or more un- acts; lawful overt (5) damage- to the party whose relation- ship or expectancy was disrupted. damages as proximate result of the conspiracy. Hayes v. Northern Hills Hosp., General ¶ 28, 18, Implants Litiga- In re TMJ Prods. Liab. 1999 SD (citations (8th Cir.1997) omitted). tion, Notably, 113 F.3d none of these (citations omitted). require elements This is not an inde- the existence of an ex- “ action, fact, pendent press employment cause of but ‘sustaina- contract.6 we “ occur, only underlying ble after the tort claim stated that this tort to ‘[f]or has relationship been established.”’5 v. business ... not Hanten School need be ce- Gardens, and, District Riverview mented written or 183 F.3d verbal contract (8th Cir.1999) ... it need not be (quoting K & S intended that there be a ” ¶ Bank, contract.’ Partnership (quoting Continental 952 F.2d Id. 17 45 Am.Jur.2d (8th Cir.1991)). (1969)). § Interference Clearly, jury could determine ‘One is liable for commis duty loyalty. that Akins breached his If sion of this tort [if he] interferes with so, finding “this satisfy would the unlawful another, existing business relations of both act conspiracy element of the civil defini- by inducing and prospective, per a third Courier, tion[.]” Jet P.2d at son not to enter into or continue business is also reversed. by preventing relation another or person continuing third from a business F. Interference with Business Relations relation with 22 (empha another.’ added) Setliff sued both Akins and (quoting Plumbing Stew- sis Northern & Bros., Inc., Heating, art for interference with business rela- Inc. v. Henderson (1978)). Summary judgment granted tions. Mich.App. Thus, Although both Akins and Stewart. relationship “valid business or ex- correctly points lionship expectancy,’ 5. The dissent "[t]he [has] out that to be a requisite of a existence contract is not a showing of a ‘contract or business relation- However, . proving conspiracy.” goes on to ship’ plaintiff between the identifiable " summary judgment appropri- conclude that Shaver, party.' third Landstrom 'underlying ate because "no tort claim’ exists 16). It conspiracy to serve as the basis for Setliff's further an at-will em- determines because action." relationship ployment existed between Setliff Akins, "there was no valid rela- business judg- summary 6. The dissent concludes that tionship to be interfered The dissent with[.]" appropriate ment was for this issue because " point. misses the in order ‘to establish a 'valid business rela- *12 party. Although must a third Akins testi- pectancy” exist with actions of Stewart. ¶ 75, Landstrom, 25, 1997 SD he unhappy that the Setliff fied words, a left, In other “there must be long genu- at 16. before he there are Clinic - third plaintiff, an identifiable ‘triangle’ concerning ine of material fact issues plaintiff, party who wished deal with leaving timing leaving. and the of his who interfered with and defendant that, claims Finally, 41.] Setliff [¶ the third Id. plaintiff party.” resigna Akins unexpected as a result of Here, a business relation [If37.] tion, of patient jeopar his level care was (Setliff) ship plaintiff existed between re physician dized because his staff was (Akins). party previously the third As half. He that the by duced also contends discussed, in can be of the been good will Setliff Clinic has parties’ from the conduct and the ferred because tarnished the inconvenience However, one surrounding circumstances. patients. to his caused does not need conclude that implied, or their express Clearly, existed because exists 42.] sufficient evidence [¶ relationship” employer “business of material fact: to establish issues employee satisfy (1) sufficient to the first intentionally whether inter- Stewart ¶28, 17, Hayes, element. See 1999 SD with Akins’ at the Set- fered at 248 (stating (2) N.W.2d that ‘the business Clinic; liff have whether Akins would by ... relationship (3) need not cemented interference; be absent resigned Stewart’s and, written or verbal contract ... it need experienced whether Setliff economic dam- (4) not be intended there be contract.’ age from Akins’ resignation; and omitted)). (quotation Therefore, thereof. extent this issue reversed and remanded. Second, 38.] Stewart was em [¶ ployed independent as an consultant for 2. DID THE TRIAL ERR COURT at the time In
Setliff Akins was hired. IN DENYING SETLIFF’S MOTION fact, responsible securing he was FOR SUMMARY ON JUDGMENT employment agreement written between LIBEL AKINS’ CLAIM. Obviously, Setliff and Akins. Stewart was relationship of the between aware business 20-11-2, 44.] Under SDCL Setliff and Akins. defamation consists of either libel or slan Serv., der. Northwestern Pub. Third, [¶39.] claims that Setliff Guilford SD “intentionally unjustifiably in Stewart law, Under South Dakota libel and “both this relationship by persuad terfered with ‘unprivileged’ slander are defined com as ing Akins was not a Clinic Proper Kieser munications.” v. Southeast employer suitable and that Setliff some ¶ ties, lacked how sufficient moral character to be -4). 20-11-3, (citing Privilege may SDCL worthy employment.” of Akins’ He fur always be raised as a in a defama defense ther encouraged claims Stewart Sparagon tion v. Native (citing action. to leave the Setliff Clinic and start own Inc., Publishers, Am. SD fact, practice. reveals that the record 132). N.W.2d A communi privileged Akins, space Stewart leased office be statutorily cation is as a communi defined came principal of Akins’ stockholder ways: in one following cation made Clinic, company, Great and even Plains secured a “lucrative” consulting agreement (1) proper In the of an official discharge with Great Plains Clinic. duty; Fourth, any legislative judicial
[¶40.]
claims that
proceed-
or
there was no
that Akins would
ing,
proceed-
indication
other official
law;
have left
ing
his Clinic had it not been for the
authorized by
communication,
malice, Clinic; therefore,
In a
without
Akins has the burden of
therein,
person
to a
interested
proving that Setliff made a “false and un-
interested,
one who is also
one privileged publication.” See Miessner v.
who stands
such relation to the
Associates,
Inc.,
All Dakota Ins.
person
afford a
interested as to
rea-
(S.D.1994)
203-04
(citing
ground
supposing
sonable
-4).
20-11-3,
SDCL
The trial court de-
motive for the
inno-
*13
communication
summary
nied
judgment because issues of
cent,
requested by
or who is
the
fact existed on the defamation claim in the
person
to give
interested
the infor-
letter.
mation;
[¶ 46.] Setliff contends that no defama-
(4) By a
report,
fair and true
without
tion was committed
upon “qualified
based
malice,
judicial, legislative,
of a
and
privilege”
conditional
under SDCL 20-
public
other
proceeding
official
or of 11-5(3). He argues
“believed,
that he
anything said in the course thereof.
good
reason,
faith and with good
that Set-
provided
the cases
for in subdivisions
liff
patients
Clime’s
right
had a
to know of
(3)
(4)
section,
of this
malice is not
departure,
Akins’
and Setliff never enter-
inferred from the
pub-
communication or
tained serious doubt as to
truth
the
lication.
letter’s content.” In
support
argu-
20-11-5).
Id. (quoting SDCL
ment, Setliff cites Tibke and Restatement
types
There are two
privileges
under
(Second)
§
of Torts
596. Under the Re-
Gordon,
Bego
SDCL 20-11-5. See
section,
statement
the common interest
(S.D.1987);
Hackworth v.
privilege applies
“persons
where
a
having
Larson,
83 S.D.
common interest
particular
matter
(1969).
(1)
(2)
Subsections
are
correctly or reasonably believe that there
absolute,
considered
unconditional privi
is information that another sharing the
Hackworth,
leges.
See
[¶ 48.] record (citations omitted). Therefore, trial privilege to flicting evidence as whether any clearly summary and in granting exists whether Setliff exceeded court erred pa privilege by mailing his letter to all against Akins on claim for judgment receipt by tients of clinic and Setliffs this employment breach and by practicing two doctors letter must also and issue be reversed remanded. Additionally, and conflict Idaho Missouri. We affirm Issue and reverse [¶ 51.] case as to ing evidence exists and remand Issues and 3. “a published whether Setliff the letter with A re disregard reckless for the truth.” that it undis
view the record reveals is MILLER, Justice, Chief and [¶ 52.] resig that puted provided a letter of KONENKAMP, Justice, concur. identifying nation to the reasons Setliff and The reveals AMUNDSON departure. record also GILBERTSON, Justices, dissent on
that the letter from Akins to Setliff
Thus,
3.
not read
Setliff.9
Setliffs own Issues
and
questions by
suspended.
no
9. Setliff answered
Akins’ counsel
I have
interest
in this
as follows:
document. None. And unless I’m made
nothing
to won't
because
I
read it
there's
Q:
(Mr. Sanford)
resig-
Ever
[Akins'
seen
possibly justi-
can
in this document which
nation letter] before?
fy
depar-
precipitous,
without notice
(Setliff):
A:
No.
....
ture
Q:
you?
No one ever showed it to
A: I
it was available.
I had no
was told
Q:
right.
you
your
at the
desire to read a document from someone
All
So
did
work
Surgical
you
who
under these circumstances.
Sioux Falls
Center. When
leaves
attempt
you
any
interest.
whatsoev-
make
to
None. Zero. No
None
were done did
er.
contact Dr. Akins and find out what was
Q:
going
anybody explain
you
Did
its
on?
content?
explain something.
A: Let me
The answer
A: No interest. You have
understand
because I
no interest
that.
I
know how make it
that is no
had
don’t
no,
justification.
is
clearer....
content. There
no
Q:
no,
nothing
you
would
Nothing. There is
that
So
answer is
had no discus-
high
dry.
justify leaving patients
sion with him?
insult,
nothing, nothing,
I did not
will not.
There is
no
noth-
A: The answer is that
ing
justify leaving patient care
are
would
Those
the answers.
AMUNDSON,
(dissenting
Justice
on Is-
Despite
num-
ever-increasing
3).
challenges,
1 and
ber of
sues
South Dakota still fol-
employment-at-will
lows the
doctrine. See
Because there is no
issue
Inc.,
Merritt v.
Express,
Edson
fact, I
I
of material
dissent.
believe all of
(S.D.1989);
Stedillie v.
deserving
summary
Setliff s claims are
Co.,
American Colloid
F.Supp.
therefore, I
judgment,
will address each
(D.S.D.1991).
fact,
the doctrine
individually.
claim
has
60-4-4,
been codified under SDCL
provides
“[a]n
hav-
Employment
a. Breach
Contract
ing
specified
no
may
term
be terminated at
will
party
other,
of either
on notice to the
inquiry
initial
[¶ 55.] Our
whether a
provided by
unless otherwise
statute.”
valid contract was entered between Akins
(1993).
See SDCL 60MM
We have often
undisputed
It
Setliff.
that no writ-
noted that “when there is no employment
ten
contract existed between
specified
contract or
term of employment,
however,
parties.
argues,
an employer
has no
proce-
established
express
contract exists
upon
based
dures
discharging
employees, the em-
parties
oral
made
ployment is terminable at the will of the
alternative,
February
In the
employer under SDCL 60-4-4.” Larson
argues
that an
contract ex-
*15
Kreiser’s, Inc.,
761,
v.
472 N.W.2d
762-63
upon
isted based
the conduct of
par-
the
(S.D.1991) (citing Hopes v. Black Hills
ties. The trial
disagreed
court
and held
Co.,
(S.D.
Light
Power &
tions. held based this no legal There is distinction in effect lack of discussion on “it period,” the “trial express an an im- between contract and hardly argued be can that has been a plied implied An is a contract. contract mutual consent to of the modification the true and must all the contract contain prior Despite contract.” Id. at express the an The elements contract. of consent, mutual way lack of found the court distinction between them is in the employment that an a In contract for definite which mutual assent is manifested. period specified year of one exist. The express did an contract the terms are stated ruling court based its on In by parties. implied 60-1-3. the an contract SDCL they In the circum- statute stated: are inferred from the stances.
A is presumed servant to have been length such as hired time the St. John’s First Lutheran Church v. Stors for of teen, 33, 37, parties adopt the 727 estimation 77 S.D. 84 N.W.2d for of added). (1957) (citation omitted) A wages. hiring yearly (emphasis at a rate is 896 discussed, legal (4)sought of the assistance with for- previously review
As we despite negotia- and in- reflects that mation his new business record and Akins Febru- Setliff Great Plains. corporated tions between 16,1997, parties were never to able ary conduct, argues of this As result Setliff regarding the terms agreement come to an preferred that own Akins has his interests contract. We have of their Clinic, employer, of his has those often noted: duty loyalty. violated his any that of the terms of the appears If it trial that [¶ “[t]here The court held 65.] are to be open left settled [contract] showing looking no than was other negotiation parties] [the future between any there was contact starting practice agreement; not complete ‘there is any patients, anything with to interfere met; not parties fully have minds practice.” previously We with have held and, have, they until court will under- no flatly pro- not SDCL 60-2-13 “does stipulations give effect to those take hibit from their employees pursuing own settled, or to that have been make an does, interests,” however, require an parties respecting employee prioritize. v. Pure Bushman matters have those been left unset- Int’l, Ltd., Plant N.W.2d Food 330 tled.’ (S.D.1983). addition, 764 employ- “[a]n Albert, Lodge v. Deadwood No. 508 319 his prefer employer’s ee must business (S.D.1982) Engle N.W.2d his own.” interests to Heier, S.D. N.W.2d 15-6-56(e), “the op- SDCL [If66.] Under (1970) (citation omitted)). upon Based posing be party diligent resisting [must] drafts, s it is summary judgment, motion mere “meeting the minds” lack- evident was general allegations and denials do implied an contract. There- ing create specific prevent not set forth will not facts fore, express no since Hughes- a judgment.” the issuance of existed, the specified for a term trial court Co., Inc. v. Johnson Dakota Midland err in that Akins finding did not Hosp., 86 S.D. employee-at-will. (1972) (citing Liberty Leasing Co. v. Duty Breach Loyalty b. (5th Corp., Hillsum F.2d 1013 Sales Cir.1967); Co., Engl Aetna Ins. claims Akins 64.] Setliff next violated Life (2d Cir.1943)). F.2d reviewing loyalty duty planning his to Setliff record, any failed to submit data researching the formation own his that Akins with his 60-2-13, showing interfered ob- clinic. Under SDCL em- “[a]n Clinic, ligations to competed Clinic ployee has who business to transact on while account, employee, he was still solicited own similar to that entrusted Setliff, away usurped from customers to him by employer, always give must Clinic, away customers from potential oth- preference.” latter Setliff con- *18 conclusory allegations er than his own that Clinic, employee that while still tends an of and happened that is insufficient. following: Akins did the Therefore, the trial court not error in did (1) necessary accumulated the financial summary granting judgment. information to present prospective to lenders; Loan Obligation c.
(2) met with in bankers mid-to-late Jan- uary financing 1998to discuss his for next contends that the trial [¶ 67.] Setliff business; new summary court in granting judg- erred (3) $7,000 to pur- directed allowed Stewart to ment on his action recover the he paid
chase office and to for the equipment payment furniture down 1998; January argues in and house. Setliff that this “advance” a loan alleging they constitutes and is an enforceable conspired to commit 1) contract The trial implied between them. following: breach duty loyalty; Akins’ 2) summary to Akins granted judgment court compete clinic; unfairly against Setliffs upon prove any based Setliffs failure 3) to interfere the business relation- or basis of “terms the loan.” ship and breach his employment contract. The trial court granted summary judg- 68.] Werner v. Norwest Bank [¶ ment on this upon issue based “no con- Dakota, (S.D. South existing. tract” 1993), sued Bank Werner Norwest of an promise money. breach oral loan to [¶ 71.] To establish a cause of action summary court granted judg The trial Dakota, civil conspiracy South in favor of Id. ment Norwest Bank. On prove must the following elements: this appeal, Court held that “[w]here persons; two or more showing that an alleged is no terms object an to be accomplished; agreement oral were ever settled or (3) meeting object the minds on the upon, agreed proper the trial court taken; course action to be granting summary judgment.” at 141 Deadwood (citing Lodge, 319 at (4) the commission of one un- N.W.2d or more (citing Engle, S.D. N.W.2d acts; lawful overt 454)). (5) damages as proximate result of 69.] Setliff adamantly contends that conspiracy. $7,000 gave he Akins for down (TMJ) Temporomandibular In re Joint payment constituted an loan con- Implants Prods. Litig., Liab. 113 F.3d however, tract; amount, other than the (8th Cir.1997). 1484, 1498 any Setliff fails to cite other terms The existence of a is not loan “implied contract.” Setliff does not Instead, requisite proving conspiracy. terms, any specify other essential such as: show Setliff must that Akins and Stewart rate, term, security, interest time and one or “committed more unlawful overt date, repayment, closing method or the K acts.”10 In & Partnership S v. Conti preparation execution of written docu- Bank, (8th nental F.2d Cir. provided ments. Setliff has no evidence 1991) (citations omitted), Eighth Cir settled, of these terms were ever cuit of Appeals “[c]ivil Court noted that upon, or agreed even discussed. As we requires conspiracy par- an Werner, noted in “[w]here there was no ticipate activity unlawful rate, understanding as to the ... interest act injury, overt that causes so it ‘do[es] time and method of repayment, and no an independent not set forth of ac- cause documents, exchange no enforceable only tion’ but rather is after ‘sustainable can be said to exist.” tort underlying claim has been estab- (citations omitted). Setliff has lished.’ A review of this reflects record present specific failed facts to establish “underlying that no tort claim” exists to genuine, that a fact material issue of exists conspiracy basis serve as the for Setliffs regarding the loan existence of a obli- action. therefore, gation; the trial court did not err in granting summary judgment. “it We have often is a noted that, well rule of entrenched this Court
d. Civil Conspiracy correct, judgment where a it will not be *19 Setliff conspir- though commenced a civil [¶ 70.] reversed even it is based on erro- against acy action both wrong Akins and Stewart neous conclusions or reasons.” open, design.” 10. An "overt act” "[a]n is defined as of an intent manifestation or criminality may (6th 1990). act from manifest implied. be Dictionary Law 1104 Ed. Black’s pursuance An outward done in act 898 Game, of tortious (recognizing Dakota the cause action Secretary v. South Wolff 531, relationships or 537 with business Dep’t., Parks 544 N.W.2d interference
Fish & Grevlos, (S.D.1996) v. expectancies). (citing Sommervold (S.D.1994); 733, v. Kirby 740 518 N.W.2d establish a ‘valid business [¶ “[T]o 76.] Co., 488, 19 Surety 70 S.D. Western there relationship expectancy,’ [has] (1945)). Further, 14 ‘“sum- N.W.2d showing be ‘contract or business affirmed if mary judgment will be there the and an plaintiff relationship’ between support trial any basis which the exists v. party.” third Landstrom identifiable (quoting Paul ruling.’ St. court’s ¶ Shaver, 25, 75, 1, 17 N.W.2d 1997 SD 561 v. Schilling, & Ins. Fire Marine 908-09). Tibke, I N.W.2d (S.D.1994)) (emphasis in N.W.2d relationship believe that the may court original). While the trial have an at will between Setliff and Akins was summary erroneously judgment its based was valid business relationship, no contract,” “lack court on the under relationship to be interfered with summary judgment granted on properly ¶ Densmore, 87, 25, above. See 1998 SD this issue. at 131 no interference (finding relationship be- with at-will business e. with Business Relations Interference ... relationship cause [was] “the business commenced an action also protection not realm of afforded within the solely against for interference Stewart action”). Defco, this cause See also The trial court with business relations. Inc., Cylinder, Inc. v. Decatur 595 So.2d summary judgment to on granted Stewart (Ala.1992) ex- (finding no basis upon this issue based Setliffs failure to allowing isted for an action for intentional of a valid prove the existence business interference under the circumstances of opined relationship. The trial court this failed that the case and Defco to show not There “there was a contract. was not employees anything em- were other than relationship a business to be interfered ees-at-will). ploy at will.” with other than granting was no [¶ 77.] There error prima To 75.] establish facie claim on summary judgment issue. this expectancy, for interference business with following elements must be satisfied: Likewise, is- because no (1) the of a valid re- existence business finding sue of material fact exists as to the
lationship expectancy; summary no judgment court proper. trial court was The trial (2) knowledge by the interferer of summary judgment granted expectancy; relationship or upon decision prior issue based its unjustified intentional act of no I agree contract existed. Because part interference on the the inter- trial court that no contract exist- ferer; ed, I on Issues and 3. dissent (4) proof interference caused sustained; harm GILBERTSON, Justice, joins this (5) damage party to the whose relation- dissent. ship or expectancy disrupted. v. Hayes Hosp., Northern Hills Gen. (citing
SD ¶ Murdock, 1999 SD
Case 917, 919; Tech. Communication Densmore,
Sys., Inc. 131). also See Tibke v. (S.D.1992)
McDougall, N.W.2d 898