Vreugdenhil v. First Bank of South Dakota, N.A.

MORGAN, Retired Justice

(concurring in part and dissenting in part).

I concur in the result but I must respectfully dissent from the majority’s interpretation of SDCL 21-1-4.1. The statutory language in question reads: “[T]he court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct[.]” From this wording, the majority facilely concludes that the proponent’s burden is simply to establish a “prima facie case” for punitive damages. That is not the way that I read the statute.

This court has defined prima facie case thusly: “Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain?” Northwest Realty Co. v. Per*761ez, 81 S.D. 500, 505, 137 N.W.2d 345, 348 (1965), quoting 9 Wigmore, Evidence, (3d. ed.) § 2494). See also Jerke v. Delmont State Bank, 54 S.D. 446, 451, 223 N.W. 585, 587 (1929). It is a far weaker threshold of proof than “clear and convincing,” which this court has defined as somewhere between the rule in ordinary civil cases and the requirement of our criminal procedure; that is, it must be more than a mere preponderance but not beyond a reasonable doubt. Cromwell v. Hosbrook, 81 S.D. 324, 134 N.W.2d 777, 780 (1965).

It is a fundamental rule of statutory construction that all provisions within statutes must be given effect, if possible. Beitelspacher v. Winther, 447 N.W.2d 347, 351 (S.D.1989); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 294 (S.D.1982); In re Silver King Mines, 315 N.W.2d 689, 691 (S.D.1982), on reh’g In re Exploration Permit Renewal of Silver King Mines, 323 N.W.2d 858 (S.D.1982). However attractive it may be to liberally construe statutes to avoid a harsh result, this court will not so act when such action would do violence to plain language of the statute. Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985).

What the majority has done is amend the statute by deleting the requirement for clear and convincing evidence and substituting “prima facie case,” a term which does not appear in the statute, but which they apparently equate with “reasonable basis.” If the legislature had wanted to require only a prima facie case, they could easily have said so. In my opinion we are required to apply the clear wording of the statute which specifies “clear and convincing,” before we can launch off into interpreting “reasonable basis” to mean “prima facie.”

The majority would do what the opponents of the bill failed to do in the legislature. According to the legislative history of the measure, detailed in footnote 21 of Dean Driscoll’s law review article,* House opponents to the bill, already passed by the Senate in its present form, attempted to amend the bill to substitute “preponderance of the” evidence for the term “clear and convincing” evidence. The bill was so amended in the House Judiciary Committee and reported out “do pass as amended.” However, it was amended back to its original wording on the floor and passed by a substantial margin (62 to 5). As Dean Driscoll notes, both burdens of proof were issues considered by the legislature, but “clear and convincing” prevailed. Driscoll, Punitive Damages, 33 S.D.L.Rev. at 251-52, n. 21. Until now, that is. At this point, it is noteworthy that, while Dean Driscoll’s article, printed in 1988, was highly critical of the statute and suggested a revision, there has been no legislative response to his suggestion.

The purpose of a statute is to be gathered from the whole act, and in determining such purpose resort may be had not only to context, but to the structure and scheme of the act, and in some cases to its historical background or legislative history. Simpson, 367 N.W.2d at 763; State v. Douglas, 70 S.D. 203, 16 N.W.2d 489 (1945). According to footnote 18 of Dean Driscoll’s article, the legislation was drafted and actively supported by the South Dakota Medical Association. Driscoll, Punitive Damages, 33 S.D.L.Rev. at 251. The statute as enacted came out of the amendment of several bills in the Senate Judiciary Committee. The facts that the Senate Judiciary Committee recommended “Do Pass”; that the Senate, in fact, passed the bill by a margin of 30 to 2; and that the House ultimately passed it in its present form by a margin of 62 to 5, shows pretty strongly that the legislature intends that the threshold of proof shall be “clear and convincing.”

In my view, the plain wording of the statute requires a pretrial hearing, even before discovery, wherein the claimant shall establish a claim of willful, wanton or malicious conduct on the part of the party claimed against. The statute requires “clear and convincing” evidence that there is a “reasonable basis.”

*762My concurrence in result is based upon my firm judgment that the trial court was, in fact, clearly erroneous in its decision, even under the statutory standards^as I perceive them to be. This court has said that the technical meaning of “clear and convincing evidence” is:

‘[T]he witnesses must be found to be credible, that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.'

Cromwell, 81 S.D. at 329, 134 N.W.2d at 780 (citations omitted). There is no dispute in this record as to the events that occurred in the process of entering and taking possession of the dealership. The direction to the sheriff to break in the door, after First Bank’s attorney, on the scene, acknowledged that Vreugdenhil had rights, satisfies in my view, and for the purposes of the pretrial hearing only, the burden of establishing clear and convincing evidence that the actions of First Bank were willful, as opposed to wanton as found by the majority-

1, too, would reverse the trial court’s decision.

Driscoll, Statutory Restrictions on the Discovery and Trial of Punitive and Exemplary Damage Claims in South Dakota, 33 S.D.L.Rev. 247, 251 (1988) (Driscoll, Punitive Damages).