Tibke v. McDougall

SABERS, Justice

(dissenting).

Summary judgment was improper because a genuine issue of material fact exists as to Defendants’ conduct and comments precipitating Tibke’s loss of membership in both WRAC and ApHC. The burden is upon the Defendants, as moving party, to clearly show that when the evi*910dence is viewed most favorably to Tibke, no genuine issue of material fact exists. Weiszhaar Farms v. Live Stock State Bank, 467 N.W.2d 752, 754 (S.D.1991); Klatt v. Continental Ins. Co., 409 N.W.2d 366, 368 (S.D.1987). They failed to sustain their burden. State, Dept. of Revenue v. Thiewes, 448 N.W.2d 1, 3 (S.D.1989).

The majority opinion sets out the five-part test for tortious interference with a business relationship or expectancy. It then ignores portions of this test. Even if Tibke made no showing of any contract or business relationship, the record is replete with expectancies. (See, e.g., Affidavit of Elaine Thomas, SR 794, wherein she stated: “[W]e have therefore not been able to continue our practice of hiring Doris Tibke to show our horse. As far as we are concerned, the WRAC board is solely responsible for the inability for us to continue what had been a wonderful and continuous working relationship.”). Additionally, Tibke provided evidence that the value of her own horses, also a business expectancy, dropped due to her inability to show them. (See Affidavit of Roy Yates, SR 786).

Viewing the evidence most favorably to Tibke, genuine issues of material fact exist as to whether Defendants intentionally interfered with Tibke’s business expectancies by causing her loss of WRAC and ApHC membership. Therefore, summary judgment was improper. Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 172 (S.D.1987). I would reverse and remand for a trial.