#24861, #24869-a-DG
2009 SD 17
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
LARRY SAATHOFF, Plaintiff and Appellant,
v.
MYRON KUHLMAN, Defendant, Third Party
Plaintiff and Appellee,
v.
SANDRA LARSON and
LANCE NOEM, Third-Party Defendants.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
HAMLIN COUNTY, SOUTH DAKOTA
* * * *
HONORABLE TIM D. TUCKER
Judge
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 4, 2008
REASSIGNED DECEMBER 29, 2008
OPINION FILED 03/18/09
MARK V. MEIERHENRY
PATRICK J. GLOVER of
Danforth & Meierhenry, LLP
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.
JACK H. HIEB of
Richardson, Wyly, Wise,
Sauck & Hieb, LLP
Aberdeen, South Dakota Attorneys for defendant,
Third paraty plaintiff
and appellee.
#24861, #24869
GILBERTSON, Chief Justice (on reassignment).
[¶1.] Larry Saathoff sued Myron Kuhlman for defamation and intentional
infliction of emotional distress based on the implications of a letter to the editor
authored by Kuhlman and published in area newspapers. Kuhlman sued Saathoff,
Sandra Larson, and Lance Noem for defamation based on three allegations set forth
in a petition they circulated. The circuit court granted summary judgment in both
suits finding, in part, that the statements were true, or at least half-truths.
Saathoff appealed. Kuhlman filed a notice of review, preserving his appeal should
this Court reverse the circuit court on Saathoff’s claim of error. We affirm.
FACTS
[¶2.] Saathoff began working for the Hamlin County Highway Department
in 1978. He was appointed Hamlin County Highway Superintendent in September
1985 and served in that capacity until he resigned on March 16, 2004.
[¶3.] Kuhlman served as a Township Supervisor for Oxford Township in
Hamlin County from 1978 until 2001. He was elected to the Hamlin County
Commission in 2001. Kuhlman served as vice chairman of the commission in 2001,
and was chairman from 2002 until mid-2004.
[¶4.] In early 2004, allegations arose that, when purchasing new highway
equipment from Butler Machinery Company (Butler Machinery) in 1991 and 1994,
Saathoff swapped the new tires and cutting edges on the new equipment with the
tires and cutting edges on the old equipment being traded-in. As a result of the
swap, the county’s new motor graders were purchased without new tires and cutting
edges. When Kuhlman heard about these allegations, he confronted Saathoff.
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Saathoff claimed that the old machines had better quality tires and cutting blades,
and that he was saving the county money by following this practice. Saathoff
claimed that the Hamlin County Commission and Butler Machinery were aware of
and approved the swapping on the occasions it occurred.1
[¶5.] Kuhlman reported the allegations to State’s Attorney Justin Hyde,
who conducted an investigation. Hyde reported to the commission that he found
nothing in the bid specifications authorizing the swapping practice. He speculated
that Saathoff had some “off the books” arrangement with Butler, allowing Butler to
lower its bid to ensure acceptance. 2 Hyde indicated it was not proper bidding
practice to create bid specs and then deviate from them after the bids were
accepted. He informed the commission that the statute of limitations had expired
on these activities, but any future occurrences would be prosecuted. Upon receiving
this information, the commission met with Saathoff and asked him to resign. The
commission had previously decided that if Saathoff refused to resign, proper steps
would be taken to formally terminate him. Saathoff resigned on March 16, 2004.
[¶6.] Following Saathoff’s resignation, Saathoff, Larson, and Noem
circulated petitions to have Kuhlman removed from the county commission. The
petitions alleged that Kuhlman participated in illegal activity while on the
1. Saathoff claims that bidding documents and Hamlin County Commission
meeting minutes evidence knowledge of at least one instance of the swapping
practices.
2. The record indicates that at least one of the commissioners believed Saathoff
had an unhealthy bias in favor of Butler Machinery and the Caterpillar
brand equipment sold by them.
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commission, three instances of which are at issue: (1) that Kuhlman met alone with
Hamlin County Highway Department employee Steven Palo and discussed
Saathoff’s resignation, that Kuhlman told Palo not to mention the meeting to
anyone, and that the commission did not approve of this meeting; (2) that Kuhlman
demanded the April 6, 2004, Hamlin County Commission meeting minutes be
changed to reflect that all questions asked during the meeting regarding Saathoff’s
resignation were answered; and (3) that Kuhlman instructed four county employees
to use county equipment to haul fieldstone from his private property. Saathoff,
Larson, and Noem asked State’s Attorney Hyde to investigate these matters. Upon
investigating, Hyde concluded that the allegations lacked merit.
[¶7.] Saathoff’s resignation, the petition to remove Kuhlman from office, and
the subsequent investigation garnered significant local press. There were several
letters to the editor and stories published regarding the events. On September 1,
2004, Kuhlman wrote a letter to the editor that was published in the Hamlin
County Herald Enterprise, the Estelline Journal, and the Hamlin County
Republican. One sentence in this letter is the basis of Saathoff’s claim. It reads as
follows: “After receiving information that as many as 60 new tires and cutting
edges had disappeared from new equipment purchased in 1991 and 1994, the
State’s Attorney was consulted.”
[¶8.] Saathoff filed suit against Kuhlman for defamation and intentional
infliction of emotional distress, based on this single sentence. After answering and
pleading defenses, Kuhlman moved for summary judgment. In a memorandum
decision dated January 23, 2006, Judge Rodney J. Steele granted summary
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judgment on the intentional infliction of emotional distress claim,3 but denied
summary judgment on the defamation claim. Based on Judge Steele’s rationale for
not dismissing the defamation claim, Kuhlman sought leave to amend his answer to
assert a counterclaim against Saathoff, and to serve third-party complaints against
Larson and Noem, alleging defamation based on the circulated petition. The parties
stipulated to, and the court granted, the motion to amend the answer and serve the
third-party complaints. Thereafter, Saathoff, Larson, and Noem moved for
summary judgment on the defamation claims. In his January 10, 2007,
memorandum opinion, Judge Steele granted summary judgment to Noem,4 but
denied Saathoff’s and Larson’s motions.
[¶9.] After Judge Steele retired, Judge Tim D. Tucker presided over this
case. Judge Tucker reconsidered the previously filed summary judgment motions.
After conducting another summary judgment hearing, he granted each party’s
summary judgment motion. Specifically, Judge Tucker held: (1) the statements in
the petition and the letter to the editor were political in nature; (2) the common
interest privilege is involved and it heightens the standard in the case; and (3) the
statements were all true, even if half-truths.
[¶10.] On April 17, 2008, Saathoff filed a notice of appeal claiming the grant
of summary judgment to Kuhlman was error. By notice of review, Kuhlman
preserved the issue whether the circuit court erred in granting summary judgment
3. Dismissal of the intentional infliction of emotional distress claim has not
been appealed.
4. The grant of summary judgment to Noem has not been appealed. Therefore,
Noem is not a party in this consolidated appeal.
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to Saathoff and Larson, and asked that it be considered only in the event this Court
reverses the circuit court’s grant of summary judgment to Kuhlman. We affirm.
STANDARD OF REVIEW
[¶11.] Our standard of review on summary judgment is well settled:
In reviewing a grant or a denial of summary judgment under
SDCL 15-6-56(c), we 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.
Pellegrino v. Loen, 2007 SD 129, ¶13, 743 NW2d 140, 143.
ISSUE
[¶12.] Whether the circuit court erred in granting summary
judgment to Kuhlman, Saathoff, and Larson after
determining the veracity of statements arguably
amenable to contrary inferences.
ANALYSIS AND DECISION
[¶13.] “Before the trial judge may examine a summary judgment motion
under SDCL 15-6-56 (c) in a libel action, the judge must know the levels of proof for
malice at the trial.” Sparagon v. Native Am. Publishers, Inc., 1996 SD 3, ¶31, 542
NW2d 125, 133. This requires a determination of whether the plaintiff was a public
or private figure under the “New York Times” test. New York Times Co. v.
Sullivan, 376 US 254, 84 SCt 710, 11 LEd2d 686 (1964). We agree with the circuit
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court that the parties in this action are public figures, at least in regard to the
allegedly defamatory statements. 5
[¶14.] As a consequence of their public figure status, the litigants face a
higher evidentiary burden in proving their claims.
A public figure bringing a libel case faces a higher burden of
proof than an ordinary civil litigant as a result of the ‘New York
Times Rule.’ This rule prohibits a public official from
recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made
with ‘actual malice’ – that is, with knowledge that it was false or
with reckless disregard of whether it was false or not. The rule
5. The circuit court did not directly identify the parties as “public figures.”
However, it did state, in its oral conclusions, that: “The court finds that the
context of both of the statements involved in this action are in the political
arena, clearly the petitions were political in nature, the letter to the editor is
in response to that petition, and is also political in nature.” We believe the
court’s statements evidence a finding that the parties are “public figures.”
Whether a person is a public figure in a libel case is a question of law. Nelson
v. WEB Water Dev. Ass’n, Inc., 507 NW2d 691, 697 (SD 1993). In Sparagon,
this Court adopted the U.S. Supreme Court’s definition of a public figure.
Sparagon, 1996 SD 3, ¶¶18-23, 542 NW2d at 131. We stated:
In some instances an individual may achieve such pervasive fame or
notoriety that he becomes a public figure for all purposes and in all
contexts. More commonly, an individual voluntarily injects himself or
is drawn in a particular public controversy and thereby becomes a
public figure for a limited range of issues.
Id. 1996 SD 3, ¶23 (quoting Gertz v. Robert Welch, Inc., 418 US 323, 351, 94
SCt 2997, 3012, 41 LEd 789, 812 (1974)).
For the purposes of this case, it is not necessary to identify whether Saathoff
is classified as a public figure for all purposes or merely a “limited” public
figure. It is sufficient that Saathoff has voluntarily injected himself into a
public controversy regarding these matters through the petition to oust
Kuhlman. At minimum, he is a “limited” public figure for these issues and is,
therefore, subject to the heightened evidentiary standards of New York
Times. While we review questions of law de novo, we believe the circuit
court’s statements, quoted above, reflect this rationale in support of its
conclusions. We agree with this assessment.
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further requires that actual malice be shown . . . by ‘clear and
convincing proof.’
Sparagon, 1996 SD 3, ¶19, 542 NW2d at 131 (citations omitted) (emphasis added).
[¶15.] This higher evidentiary burden to prove “actual malice” extends not
only to the proof required at trial, but also in resisting summary judgment.
[W]here the New York Times “clear and convincing” evidence
requirement applies, the trial judge's summary judgment
inquiry as to whether a genuine issue exists will be whether the
evidence presented is such that a jury applying that evidentiary
standard could reasonably find for either the plaintiff or the
defendant. Thus, where the factual dispute concerns actual
malice, clearly a material issue in a New York Times case, the
appropriate summary judgment question will be whether the
evidence in the record could support a reasonable jury finding
either that the plaintiff has shown actual malice by clear and
convincing evidence or that the plaintiff has not.
Janklow v. Viking Press, 459 NW2d 415, 419 (SD 1990) (overruled on other grounds
by Paint Brush Corp., Parts Brush Div. v. Neu, 1999 SD 120, 599 NW2d
384)(emphasis added) (quoting Anderson v. Liberty Lobby, Inc., 477 US 242, 255-56,
106 SCt 2513, 2514, 91 LEd2d 216 (1986)). “Clearly, the plaintiff has a much
greater burden of proof, not only at the trial level, but at the summary judgment
stage.” Id.
[¶16.] “In [Anderson], the Court stated that when the trial court examines a
summary judgment motion in a libel claim, it must ‘bear in mind the actual
quantum and quality of proof necessary to support liability.’” Sparagon, 1996 SD 3,
¶30, 542 NW2d at 133 (quoting Anderson, 477 US at 254, 106 SCt at 2513).
Saathoff identifies no defamatory statements other than Kuhlman’s letter to the
editor. Further, he offers no other evidence that suggests Kuhlman’s actual malice.
Several times, Saathoff states that “the facts are clear” that actual malice was
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present. However, he points to no “facts” other than Kuhlman’s use of the term
“disappeared.” Saathoff’s lack of evidence is most clearly articulated in his response
to Kuhlman’s interrogatories:
27. Please state all facts, which support your allegation
that any communication made by [Kuhlman]
regarding [Saathoff] was made with malice and/or
with the intent to cause injury to the plaintiff.
[Saathoff’s] Answer: The letter speaks for itself.
[Kuhlman’s] statement to [Saathoff] in March [2001] 6
displays the regard and malice [Kuhlman] had toward
[Saathoff].
(Emphasis added.)
[¶17.] According to Saathoff, Kuhlman, as a commissioner supervising
Saathoff, stated that he was dissatisfied with Saathoff’s job performance and that
his goal was to “get rid of me.” Saathoff did not allege that this conversation was
defamatory, only that it indicated malice. However, he also admitted that this
conversation was only about professional matters, not personal animosity between
the parties.
[T]here is no issue for trial unless there is sufficient evidence
favoring the non-moving party for a jury to return a verdict for
that party. If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.
Anderson, 477 US at 249-50, 106 SCt at 2511 (emphasis added). At most, this is
only a colorable claim of Kuhlman’s actual malice; Saathoff’s mere inferences do not
meet the heightened “clear and convincing standard” described in Anderson.
6. Saathoff clarified the year of this conversation in his deposition.
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[¶18.] Anderson rejects a plaintiff’s efforts to manufacture “genuine issues of
material fact,” without evidence, in order to survive summary judgment.
Respondents argue, however, that whatever may be true of the
applicability of the “clear and convincing” standard at the
summary judgment . . . stage, the defendant should seldom if
ever be granted summary judgment where his state of mind is at
issue and the jury might disbelieve him or his witnesses as to
this issue. . . . We do not understand [the plaintiff’s cited
authority] to hold that a plaintiff may defeat a defendant’s
properly supported motion for summary judgment in a . . . libel
case . . . without offering any concrete evidence from which a
reasonable juror could return a verdict in his favor and by
merely asserting that the jury might, and legally could,
disbelieve the defendant’s denial of . . . legal malice. The
movant has the burden of showing that there is no genuine issue
of fact, but the plaintiff is not thereby relieved of his own burden
of producing in turn evidence that would support a jury verdict.
Rule 56 (e) itself provides that a party opposing a properly
supported motion for summary judgment may not rest upon
mere allegation or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for trial. . . .
[T]he plaintiff must present affirmative evidence. . . .
Anderson, 477 US at 256-57, 106 SCt at 2514 (emphasis added).
[¶19.] Because no memorandum decision was in the record, we are unable to
determine the authority upon which Judge Tucker based his decision. However,
“[t]hat the trial court may have entered summary judgment for the wrong reason
does not bar this court from affirming the judgment.” Staab v. Cameron, 351 NW2d
463, 466 (SD 1984). The circuit court could have properly ordered summary
judgment under Anderson and our cases following that authority.
[¶20.] Procedurally, in New York Times cases, the plaintiff must prove the
viability of his or her case in withstanding summary judgment before defenses are
raised by the opposing party and considered by the circuit court. Therefore, we do
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not reach the issues of the “truth defense” to defamation, 7 or the conditional
privilege under SDCL 20-11-5(3). 8
7. The dissent agrees that this is a “public figure” case, yet it skips the first
inquiry in such cases: whether Saathoff met his summary judgment burden
of identifying clear and convincing evidence creating an inference of malice.
“The first step is proving that there has been a publication of a false or
defamatory statement with knowledge of its falsity or a reckless disregard for
the truth.” Janklow, 459 NW2d, 419 (SD 1990) (citing Harte-Hanks, Inc. v.
Connaughton, 491 US 657, 109 SCt 2678, 105 LEd2d 562 (1989)). Instead,
the dissent proceeds directly to the second inquiry, “whether a statement
implies a false assertion of objective fact,” and suggests that a material fact
remains in issue regarding the truth or falsity of the statement. See infra ¶¶
30-34. Although the dissent asserts that the words used by Kuhlman create
these issues of material fact, it cites no “clear and convincing evidence”
suggesting actual malice other than the word “disappeared.” The inference
that Saathoff and the dissent suggest might be drawn from Kuhlman’s use of
the word “disappeared” is insufficient to support the clear and convincing
evidentiary burden necessary to survive summary judgment. This word does
not create an issue of material fact.
The dissent’s interpretation of the passage quoted from Anderson, infra ¶30,
ignores and undermines the rest of the Anderson decision. The dissent states,
“. . . Anderson directs that if the plaintiff’s claim is based on language that is
potentially defamatory, it is the finder of fact’s duty to make that
determination.” See infra ¶30 n9. Essentially, the dissent argues that any
word that might have the slightest defamatory interpretation, however
remote, creates an issue of material fact, thus precluding summary judgment.
In application, the dissent suggests that the plaintiff simply needs to show
that a statement was made and that he or she feels it was defamatory in
order to survive summary judgment. Clearly, this was not the holding of
Anderson. The dissent’s interpretation finds no support in that opinion and
is antithetical to the “clear and convincing” summary judgment standard
applied in that case.
8. Similarly, we do not reach Saathoff’s argument that Kuhlman defamed
him through the publication of his letter in regional newspapers with
distribution outside Hamlin County. We note that the newspaper in New
York Times v. Sullivan was published in New York, New York and had
worldwide distribution. The newspaper advertisement at issue in New York
Times, which criticized public officials in Montgomery, Alabama, reached
readers well beyond the citizens of Montgomery.
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[¶21.] Because we affirm the circuit court’s decision, we do not reach
Kuhlman’s preserved issue.
[¶22.] Affirmed.
[¶23.] ZINTER, Justice, and BASTIAN, Circuit Judge, concur.
[¶24.] KONENKAMP, Justice, and SABERS, Retired Justice, dissent.
[¶25.] BASTIAN, Circuit Judge, sitting for MEIERHENRY, Justice,
disqualified.
SABERS, Retired Justice (dissenting).
[¶26.] The trial court erred in granting summary judgment in each of these
cases and I dissent. Whether the statements at issue permit defamatory inferences
to be drawn therefrom are questions to be decided by a finder of fact, not the judge,
and should not be disposed of by summary judgment.
[¶27.] A public official who sues for defamation based on statements made
about his public duties must prove that the statements were made with actual
malice. New York Times Co. v. Sullivan, 376 US 254, 279-80, 84 SCt 710, 726, 11
LEd2d 686 (1964). Actual malice is proven by showing “that the defendant knew
the defamatory statements were false or acted with reckless disregard of the truth
in publishing the statements.” Krueger v. Austad, 1996 SD 26, ¶21, 545 NW2d 205,
213 (citing New York Times, 376 US at 287-88, 84 SCt at 729-30). On summary
judgment, we use a “‘clear and convincing’ evidentiary standard in determining
whether a genuine issue of actual malice exists[.]” Anderson v. Liberty Lobby, Inc.,
477 US 242, 257, 106 SCt 2505, 2514-15, 91 LEd2d 202 (1986) (citing New York
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Times, 376 US at 285-86, 84 SCt at 729). But the clear and convincing standard
does not change the traditional summary judgment analysis; we still consider all
facts and all reasonable inferences from them in the light most favorable to the
nonmoving party. See Krueger, 1996 SD 26, ¶7, 545 NW2d at 211.
[¶28.] Saathoff claims that Kuhlman defamed him in Kuhlman’s letter to the
editor that was published in three area newspapers. The specific sentence at issue
stated: “After receiving information that as many as 60 new tires and cutting edges
had disappeared from new equipment purchased in 1991 and 1994, the State’s
Attorney was consulted.” Kuhlman’s own testimony indicates that at the time he
wrote his letter to the editor, he knew that the new tires and cutting edges had been
traded in with the old machinery, and that they had not “disappeared.” The facts
demonstrate that Kuhlman not only had a “high degree of awareness of [its]
probable falsity[,]” but that he also had actual knowledge of the falsity. Krueger,
1996 SD 26, ¶21, 545 NW2d at 213 (quoting Garrison v. Louisiana, 379 US 64, 74,
85 SCt 209, 216, 13 LE2d 125 (1964)). This meets the clear and convincing
standard of proof.
[¶29.] Kuhlman alleges that Saathoff and Larson defamed him in three
instances in a petition circulated to garner support to remove Kuhlman from the
commission. The specific allegations were that Kuhlman (1) met alone with Palo,
that Kuhlman told Palo not to tell anyone about the meeting, and that the
commission did not approve of the meeting; (2) demanded that the April 6, 2004,
Hamlin County Commission meeting minutes be changed; and (3) instructed county
employees to use county equipment to haul fieldstone from his private property.
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The record and testimony indicate that these insinuations of wrongdoing are not
factually supported. First, there was testimony that Kuhlman did not visit Palo
alone, nor did Kulhman visit Palo on his own accord; he went upon the request of
the commission. Second, there was testimony that all five commissioners, and not
Kuhlman on his own, collaboratively decided to change the “unapproved” meeting
minutes, and that changing the minutes does not necessarily implicate wrongdoing.
Finally, with regard to the last allegation, there was testimony that Kuhlman had
donated rock to the county, and that the rock was located within the right-of-way of
a township road, rather than on Kuhlman’s own property. Therefore, this evidence
similarly meets the requisite standard of proof.
[¶30.] Moreover, in Anderson v. Liberty Lobby, Inc., the United States
Supreme Court cautioned,
Our holding that the clear-and-convincing standard of proof
should be taken into account in [defamation cases involving
public figures or public officials when] ruling on summary
judgment motions does not denigrate the role of the jury. It by
no means authorizes trial on affidavits. Credibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge[.] 9
9. The majority ignores this cautionary language from Anderson. I agree that
the plaintiff must meet higher evidentiary standards, even on summary
judgment. However, Anderson directs that if the plaintiff’s claim is based on
language that is potentially defamatory, it is the finder of fact’s duty to make
that determination. To hold otherwise would nullify the teachings of
Anderson and its progeny, not to mention the fact finder’s imperative role in
the narrow line of cases similar to this.
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477 US at 255, 106 SCt at 2513 (emphasis added). 10 Even under the higher
evidentiary standard that a public figure or public official must meet to prevail on a
defamation claim, certain determinations must still be made by a finder of fact.
[¶31.] Our case law directs that it is for a fact finder to determine whether a
statement implies a false assertion of objective fact. Paint Brush Corp., Parts
Brush Div. v. Neu, 1999 SD 120, ¶50, 599 NW2d 384, 397 (citing Lundell Mfg. v.
Am. Broad. Cos., 98 F3d 351 (8thCir 1996)). See also Manuel v. Wilka, 2000 SD 61,
¶¶34-35, 610 NW2d 458, 465 (holding that summary judgment was improper
because it is for a fact finder to determine whether statements constituted
actionable false assertions of objective fact); see generally Shepard v. Courtoise, 115
FSupp2d 1142, 1147 (EDMo 2000). On summary judgment, “[t]he trial court is not
to decide the issues of fact, just determine if any such issues exist.” Paint Brush
Corp., 1999 SD 120, ¶31, 599 NW2d at 392 (citing Wilson v. Great N. Ry. Co., 83 SD
207, 211, 157 NW2d 19, 21 (1968)).
[¶32.] The circuit court dismissed both suits on summary judgment after
finding, among other things, that the statements were true, even if considered half-
truths. The court reasoned, “While each side would like to draw an inference that
the statements are false, the inference can just as easily be drawn that the
statements are true.” The court failed to recognize that one’s artful ability to choose
specific words that make a statement technically true will not protect him if the
words can also be interpreted to imply wrongdoing by the plaintiff. However,
10. Sparagon v. Native Am. Publishers, Inc., 1996 SD 3, 542 NW2d 125, and
Krueger, 545 NW2d 205, are distinguishable from the facts here as these
cases did not involve statements amenable to contrary conclusions.
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whether this is the case is a determination that should be made by a fact finder, not
a judge on summary judgment.
[¶33.] Saathoff’s claim focuses on the word “disappeared.” Viewed in the
light most favorable to the nonmoving party, this statement carries the reasonable
implication that Saathoff stole the new tires and cutting edges. Nonetheless,
whether this statement implies a false assertion of objective fact is a question of fact
to be decided by a jury. Anderson 477 US at 255, 106 SCt at 2513; Paint Brush
Corp., 1999 SD 120, ¶50, 599 NW2d at 397. For this reason, it was error for the
trial court to grant summary judgment.
[¶34.] The reasoning and conclusion are the same for Kuhlman’s claims
against Saathoff and Larson. All three allegations, when viewed in the light most
favorable to the nonmoving party, can be reasonably interpreted to imply that
Kuhlman was involved in wrongdoing, whether it was meeting with an individual in
a manner exceeding his authority, wrongfully requiring meeting minutes to be
changed, or improperly using county resources for a personal benefit. Therefore, it
is for a jury to determine whether the statements imply false assertions of objective
fact. Anderson, 477 US at 255, 106 SCt at 2513; Paint Brush Corp., 1999 SD 120,
¶50, 599 NW2d at 397. Summary judgment in this instance was similarly
improper.
[¶35.] Moreover, Saathoff and Kuhlman have both claimed damages from the
other party’s actions. For these situations, the United States Constitution and the
South Dakota Constitution safeguard one’s right to a jury trial. See US Const
amend VII (“In [s]uits at common law, where the value in controversy shall exceed
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twenty dollars, the right of trial by jury shall be preserved . . . .”); SD Const art VI,
sec 6 (“The right of trial by jury shall remain inviolate and shall extend to all cases
at law without regard to the amount in controversy . . . .”). By affirming the trial
court’s grants of summary judgment, this Court is violating these constitutional
mandates.
[¶36.] Due to the nature of the statements, genuine issues of material fact
exist as to whether these statements were made with malice. Further, granting
summary judgment in light of both parties’ damages unconstitutionally denies them
their right to a jury trial. For these reasons, the trial court should be reversed, and
the cases remanded for trial.
[¶37.] KONENKAMP, Justice, joins this dissent.
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