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GANTVOORT v. RANSCHAU

Date: 04-10-2022

Case Number: 2022 S.D. 22

Judge: Janine M. Kern

Court: <center><h4> THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA On appeal from The CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT DEUEL COUNTY, SOUTH DAKOTA </center></h4>

Plaintiff's Attorney: <h2><center> <a href="https://www.morelaw.com/southdakota/lawyers/pierre/divorce.asp" target="_new"> Pierre, SD - Best Divorce Lawyer Directory</a> </h2></center> <center><h2>Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.</h2>

Defendant's Attorney: ROBERT D. TRZYNKA

Description:

<center><h3><h3> Pierre, SD - Divorce lawyer represented Plaintiff with suing his former wife for placing a hidden recording device in Doug's office. </h3></center> 
 
[¶2.] Doug and Mary married in 1996. During the course of their marriage, 
they owned and operated a specialty restoration business in Clear Lake, South 
Dakota, refurbishing antique tractors and vehicles. Mary worked as the sole 
employee of the business following a motorcycle accident Doug had in 2006. 
Sometime in late 2014, Mary began to suspect that Doug was having an affair. 
Mary sought advice from private investigators about how to conduct electronic 
surveillance of Doug. Thereafter, Mary purchased a voice-activated audio recording 
device and hid it in the windowsill of Doug's office.2 On November 30, 2014, Mary 
began recording Doug at times when she knew he would be in the office. She would 
place the recording device in the room and return later to collect it and listen to the 
recordings.3 Mary made a total of fifty-one recordings. 
2. The device would automatically turn on and start recording when someone in 
the room spoke or made a sound, and it would turn off when no noise was 
detected in the room. 
3. SDCL 23A-35A-20(1)â€“(2), which criminalizes recordings made without 
consent provides that: 
[A] person is guilty of a Class 5 felony who is not: 
(1) A sender or receiver of a communication who intentionally and by 
means of an eavesdropping device overhears or records a 
communication, or aids, authorizes, employs, procures, or permits 
another to overhear or record, without the consent of either a sender or 
receiver of the communication; 
(continued . . .) 
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[¶3.] Because Doug and Mary restored large antique items, the couples' 
business consisted mostly of an open shop area with a small, enclosed office area. 
The shop area had one large door which was used most often. The office area had 
two doors, one leading into the shop and another allowing outside access. The door 
leading into the shop did not have a lock, but the outside door did have a lock to 
which Mary had a key. The office also had windows, a desk, a computer, and other 
office equipment. The windows had cardboard on the inside preventing people from 
seeing into the office. Doug frequently spent late evenings, and occasionally, he 
spent nights in the office as it also had kitchen appliances, a restroom, and shower 
facilities. Although Mary testified at her deposition that the office was Doug's "man 
cave, kind of,â€ she also testified that it was "not a man cave. It's our office. It's the 
shop. It's been a long time since it's been really opened up to the public, but yet we 
still have a lot of people come in . . . and they'll walk around.â€ (Emphasis added.) 
[¶4.] Mary's recordings consisted mostly of Doug's side of telephone 
conversations occurring late at night, some of which allegedly involved his mistress, 
________________________ 
(. . . continued) 
(2) A person present during a conversation or discussion who 
intentionally and by means of an eavesdropping device overhears or 
records the conversation or discussion, or aids, authorizes, employs, 
procures, or permits another to overhear or record, without the consent 
of a party to the conversation or discussion[.] 
Further, placing such a device is a class one misdemeanor. SDCL 22-21-1(2), 
provides in part that: 
No person may, except as authorized by law . . . [i]nstall in any private 
place, without the consent of the person or persons entitled to privacy 
there, any device for observing, photographing, recording, amplifying, 
or broadcasting sounds or events in such place, or uses any such 
unauthorized installation. 
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but one of the recordings captured the sound of Doug masturbating while he viewed 
pornography in his office. After reviewing the first few recordings, Mary believed 
Doug's conversations confirmed her suspicions that Doug was having an affair 
because he was "setting up trips for weekendsâ€ with a woman and spoke about 
building a house for her. Mary contacted attorney Strait about filing for divorce. 
[¶5.] On December 3, 2014, Mary and Strait met for the first time in Strait's 
office. Mary retained Strait to file a divorce action against Doug. During this 
initial consultation, Mary gave Strait her first recording from Doug's office and 
explained how she captured the recordings. At the behest of Mary and for 
preservation purposes, Strait directed his staff to download a copy of the recording 
to his computer system and then copy the content onto a compact disc for Mary to 
take with her. This practice continued several times per week over the course of the 
next two months. Strait's billing statements itemized the time his staff spent 
transferring Mary's recordings. 
[¶6.] The parties dispute whether Strait told Mary during the December 3 
consultation that she should stop recording Doug. Strait testified in his deposition 
that he told her not to record Doug for several reasons. He contends he advised 
Mary that recording another person without being personally present could amount 
to criminal conduct; that judges do not like secret recordings whether legal or not; 
that evidence of an affair was not the primary issue in the divorce, and that if she 
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recorded someone other than Doug, it could lead to problems for her including the 
inadvertent capturing of privileged conversations between Doug and his attorney.4 
[¶7.] In contrast, Mary testified that Strait did not advise her until January 
2015 that she should not be recording Doug's conversations. Mary claims that she 
did not know it was illegal to record Doug and that Strait did not tell her that it was 
unlawful. She did acknowledge that Strait told her that any evidence of Doug's 
affair would not determine the outcome of the legal issues in the divorce. Strait's 
notes from his initial consultation with Mary on December 3 confirm the discussion 
about the recordings but are silent as to whether he advised Mary to stop recording 
Doug. 
[¶8.] Because Mary would drop off the recordings with Strait's staff, Strait 
did not personally accept the recordings Mary brought to his office. Strait's 
paralegal, however, sent him inter-office memorandums notifying him when Mary 
dropped off recordings, which summarized the information received from her.5 For 
example, Mary dropped off recordings on January 12, 2015. Strait's paralegal sent 
him an inter-office memo that day indicating that she needed Mary's "permission to 
delete the files on the recorder so she can use it again.â€ The memo also noted that: 
"[Mary] said Doug is getting an attorney now. She'll know soon who it is.â€ Strait's 
4. Strait clarified in his deposition testimony when he said, "I didn't break it 
down into some sort of detailed analysis whether she should or not, I just told 
her 'don't do it.'â€ 
5. Strait denied listening to any of the tapes other than snippets of the two 
tapes that he proffered at trial. Additionally, Strait's paralegal listened to 
the recordings, but only long enough to ensure that they transferred to the 
computer. 
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paralegal stopped sending the memos sometime after January 12 because she 
received no feedback from Strait. 
[¶9.] Strait considered the recordings to be evidence that he had a duty to 
preserve, even though he testified that, for the most part, he thought the recordings 
were irrelevant to Mary's divorce action. Prior to trial, Mary prepared a 
handwritten note describing the contents of the recordings that she wanted to 
introduce at trial and urged Strait to use those portions of the recordings in the 
divorce proceedings. When explaining why she wanted the recordings offered into 
evidence, Mary said she "wanted Doug to know the truth, that I know that he was 
having an affair, and that's all.â€ Strait testified in his deposition that Mary became 
angry after Strait refused to reference the recordings in court documents in 
preparation for a February 27, 2015 hearing. 
[¶10.] The parties proceeded in the divorce action on May 5â€“7, 2015. During 
the trial, Strait attempted to introduce two of the recordings made by Mary on 
December 17 and 18, 2014. Although the recordings totaled seven hours, Strait 
sought admission of only excerpts from each recording.6 The circuit court sustained 
an objection to the admission of the recordings concluding that they were made in 
violation of SDCL 23A-35A-20. Thereafter, Strait laid further foundation and again 
moved to admit the tapes into evidence. The court again denied the motion. 
[¶11.] Strait then marked the two tapes as exhibits 101 and 102 and made an 
offer of proof informing the court that the recordings contained Doug's statements, 
6. One of the recordings contained the sounds Doug made while viewing 
pornography. 
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made presumably to his mistress, that (1) "what you did to me the other night was 
the greatest sexual experience of my lifeâ€ and (2) "I didn't think she would do it this 
fast, I am exposed, may cost me a couple hundred thousand dollars, reality is I'm 
worth a couple of million . . . . I love you and I'm going to say we're friends, nobody 
would have sex with somebody that has prostrate [sic] issues, it's not good for the 
prosecution.â€ The circuit court did not receive the exhibits, and they were not 
played at trial. At the close of the evidence, the court took the case under 
advisement. The circuit court issued a memorandum decision on June 2, 2015, 
followed by a decree of divorce on June 16, 2015.7 
[¶12.] Almost three years later, on January 18, 2018, Doug brought an action 
against Mary and Strait alleging: (1) invasion of privacy, (2) aiding and abetting 
invasion of privacy, and (3) civil conspiracy.8 Mary and Strait each filed motions for 
summary judgment. Strait argued that his actions did not invade Doug's privacy 
because in rendering professional legal services, he had a duty to preserve the 
recordings. In addition, he argued that he owed no duty to Doug in this context. 
Analogizing Doug's claims to a malpractice lawsuit filed against him, Strait argued 
that his legal services to Mary were not intentional acts that would result in an 
invasion of Doug's privacy. Strait also argued that he did not aid or abet Mary's 
7. The circuit court noted in its opinion that the divorce was contentious and 
that "getting to the truth in this case where testimony conflicts, with few 
exceptions, borders on the impossible due to the glaring lack of credibility of 
both parties.â€ 
8. On March 21, 2018, Doug filed an amended complaint adding David R. Strait, 
P.C., as a defendant. For purposes of this appeal both defendants are 
referred to as Strait, unless otherwise noted. 
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invasion of Doug's privacy because he did not substantially assist her in the act. As 
to Doug's civil conspiracy claim, Strait argued for dismissal because (1) there was no 
underlying tort on which to base the action, (2) Strait and Mary did not agree to 
commit a tort, and (3) a lawyer cannot conspire with his client both as a matter of 
law and under the intra-corporate conspiracy doctrine. Finally, Strait argued that 
any communications he made during his representation of Mary are absolutely 
privileged under SDCL 20-11-5(2) (detailing the statutory requirements for a 
privileged communication), including those made while attempting to introduce the 
recordings into evidence. 
[¶13.] Doug resisted the motions for summary judgment, arguing that he had 
a legitimate privacy interest in his office and that the undisputed facts show that 
Mary and Strait invaded it. As for his contention that Strait aided and abetted 
Mary in her invasion of his privacy, Doug argued that whether Strait knew that 
Mary was recording Doug and whether he told Mary to stop recording were 
disputed questions of fact for a jury. Although Doug acknowledged that courts were 
divided on whether an attorney can conspire with his client, he argued that Strait 
conspired with Mary under the facts present here. In addition, Doug argued that 
the litigation privilege did not apply to Strait because he knew the recordings were 
irrelevant to the proceedings but tried to introduce them anyway. 
[¶14.] After a hearing on the motions, the court denied Mary's motion for 
summary judgment. The court concluded that Doug's privacy was invaded and that 
Mary's "conduct was intentional; it did intrude upon conversations in which [Doug] 
had a reasonable expectation of privacy and it [was] a jury question whether under 
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these circumstances the intrusion was highly offensive.â€ With reference to Strait's 
motion, the circuit court granted his motion for summary judgment on Count 1, 
holding that Strait's conduct was not intentional because he did not advise Mary "to 
secretly place the recording device,â€ and "did not encourage her to continue 
recording the conversations.â€ The court characterized Strait's acts as those of a 
passive observer who "merely preserved the recording.â€ 
[¶15.] As for Count 2, aiding and abetting, the court granted summary 
judgment because Strait did not "substantially assist or encourageâ€ Mary's wrongful 
conduct. The court also granted summary judgment for Strait on Count 3, which 
charged Strait with civil conspiracy. 
[¶16.] Subsequently, Doug reached a settlement agreement with Mary and 
the case against her was dismissed with prejudice. Doug appeals the circuit court's 
decision granting Strait's motions for summary judgment raising several issues 
which we restate as follows: 
1. Whether the circuit court erred in granting Strait 
summary judgment on Doug's claim for invasion of 
privacy. 
2. Whether the circuit court erred in granting Strait 
summary judgment on Doug's claim against Strait for 
aiding and abetting Mary in the invasion of Doug's 
privacy. 
3. Whether the circuit court erred in granting Strait 
summary judgment on Doug's claim that Strait conspired 
with Mary to invade Doug's privacy. 
Standard of Review 
[¶17.] Summary judgment is appropriate "if the pleadings, depositions, 
answers to interrogatories, and admissions on file, together with the affidavits, if 
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any, show that there is no genuine issue as to any material fact and that the moving 
party is entitled to judgment as a matter of law.â€ SDCL 15-6-56(c). "A disputed fact 
is not material unless it would affect the outcome of the suit under the governing 
substantive law in that a reasonable jury could return a verdict for the nonmoving 
party.â€ Gul v. Ctr. for Fam. Med., 2009 S.D. 12, ¶ 8, 762 N.W.2d 629, 633 (cleaned 
up). The moving party carries "the burden of clearly demonstrating an absence of 
any genuine issue of material fact and an entitlement to judgment as a matter of 
law.â€ Aqreva, LLC v. Eide Bailly, LLP, 2020 S.D. 59, ¶ 15, 950 N.W.2d 774, 782 
(citation omitted). All facts are viewed in the light "most favorabl[e] to the 
nonmoving party[.]â€ North Star Mut. Ins. Co. v. Rasmussen, 2007 S.D. 55, ¶ 14, 734 
N.W.2d 352, 356. 
Analysis and Decision 
Invasion of Privacy 
[¶18.] Doug contends that the circuit court erred in granting summary 
judgment on his invasion of privacy claim because disputed issues of material fact 
exist regarding whether Strait's participation was minimal and designed to 
intentionally invade Doug's privacy. Doug points to several facts that he claims 
demonstrate that Strait was not merely a "passive observer[,]â€ including (1) Strait's 
failure to advise Mary that her conduct was criminal, (2) Strait's acts of keeping and 
reviewing the recordings, and (3) Strait's choice to offer the recordings into evidence 
at trial. 
[¶19.] To recover for invasion of the right to privacy, a party must prove an 
"unreasonable, unwarranted, serious and offensive intrusion upon the seclusion of 
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another.â€ Kjerstad v. Ravellette Publ'ns, Inc., 517 N.W.2d 419, 424 (S.D. 1994). 
"[T]he invasion must be one which would be offensive and objectionable to a 
reasonable man of ordinary sensibilities.â€ Roth v. Farner-Bocken Co., 2003 S.D. 80, 
¶ 19, 667 N.W.2d 651, 660â€“61 (cleaned up). This invasion or intrusion must be the 
result of an intentional act, and it is the "intrusion itself [that] makes the defendant 
subject to liabilityâ€ even if there is no publication or other use of what the defendant 
may have gleaned from the invasion. Restatement (Second) of Torts Â§ 652B cmt. b 
(1977) (emphasis added); see also Kjerstad, 517 N.W.2d at 424; Hernandez v. 
Hillsides, Inc., 211 P.3d 1063, 1072 (Cal. 2009) ("First, the defendant must 
intentionally intrude into a place, conversation, or matter as to which the plaintiff 
has a reasonable expectation of privacy. Second, the intrusion must occur in a 
manner highly offensive to a reasonable person.â€). 
[¶20.] In summary, the elements of the tort of invasion of privacy require an 
(1) intentional (2) invasion (3) that is unreasonable, unwarranted, serious, and 
offensive (4) of something to which the plaintiff has a reasonable expectation of 
privacy. A court's threshold determination of "whether there is an offensive 
invasion of privacy involves a question of law. If the court first decides there is 
substantial evidence tending to show a serious, unreasonable, unwarranted and 
offensive interference with another's private affairs, then the case is one to be 
submitted to the jury.â€ Montgomery Ward v. Shope, 286 N.W.2d 806, 810 (S.D. 
1979). 
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a. Strait's alleged failure to immediately advise Mary to stop recording 
[¶21.] Doug's first point of error concerns his claim that Strait's failure to 
give proper legal advice to Mary was an intentional oversight done for the purpose 
of interfering with Doug's private seclusion. Because Strait's alleged omission 
springs from the attorney-client relationship and the duty to provide competent 
legal advice, we view Doug's argument as akin to an allegation of legal malpractice 
to determine the duties owed by Strait to Doug. 
[¶22.] When reviewing controversies involving duties owed by attorneys to 
third-parties, we have long-established our adherence to the strict privity rule. 
Chem-Age Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 30, 652 N.W.2d 756, 769. The 
privity rule limits third-party claims such that, "to recover for a lawyer's negligence, 
a plaintiff must first show that an attorney-client relationship existed between the 
lawyer and the plaintiff.â€9 Id. Here, Strait and Doug had no such relationship. "A 
duty to a third person hence exists only when the client intends to benefit the third 
person as one of the primary objectives of the representation.â€ Id. ¶ 34, 652 N.W.2d 
at 771 (quoting Restatement (Third) of the Law Governing Lawyers Â§ 51 cmt. f 
(1998)). Doug, as the defendant in Mary's divorce action, was not the intended 
beneficiary of Strait's representation. In light of the confidentiality and trust 
integral to legal representation, Strait's and Mary's attorney-client "relationship 
9. Several important reasons support the strict rule of privity in attorney 
malpractice cases including: (1) preserving the attorney's duty of loyalty to 
the client as the client's advocate, (2) avoiding conflicts of interest, (3) 
limiting the number of persons a lawyer may be accountable to, and (4) 
maintaining attorney-client confidentiality. Chem-Age Indus., 2002 S.D. 122, 
¶ 31, 652 N.W.2d at 769 (citations omitted). 
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requires greater protection from [Doug's] third-party claims than do nonconfidential 
relationships.â€ Id. ¶ 32, 652 N.W.2d at 770. 
[¶23.] Further, Doug's allegations surrounding Strait's failure to properly 
advise Mary cannot be characterized as an intentional act to invade Doug's privacy. 
It is uncontested that recording Doug was neither Strait's idea nor his advice to 
Mary. And Doug does not claim that Strait advised Mary to keep recording, but 
rather, that Strait should have advised Mary at the outset to stop recording. Doug's 
argument can therefore only be countenanced in terms of negligence. 
[¶24.] Although there is a disputed question of fact regarding when Strait 
advised Mary that she should stop recording Doug, either on December 3 as he 
contends or in January according to Mary, Strait's legal advice to Mary did not 
breach a legal duty that Strait owed to Doug, and does not provide a legal basis for 
Doug to sue Strait. See Chem-Age Indus., 2002 S.D. 122, ¶ 43, 652 N.W.2d at 774 
("Attorneys acting in a professional capacity should be free to render advice without 
fear of personal liability to third persons if the advice later goes awry[, but] . . . 
lawyers should not be free to substantially assist their clients in committing 
tortious acts.â€). However, the timing of Strait's advice to Mary may be relevant to 
Strait's intent to aid and abet Mary in committing an invasion of privacy. 
b. Strait's involvement with Mary's recordings 
[¶25.] Doug's second claim of error focuses on Strait's handling of Mary's 
recordings, which, in his view, presented sufficient factual basis for an intentional 
invasion of privacy claim. Strait readily acknowledges that his staff saved and 
copied the recordings onto compact discs for Mary. Further, Strait and his 
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paralegal listened to snippets of the recordings at various times, billing Mary for 
these services. However, Doug does not assert that Strait personally intruded into 
his privacy. 
[¶26.] Despite these undisputed facts and the apparent illegality of the 
recordings, these actions do not constitute an actual invasion of Doug's privacy by 
Strait. Strait argues on several grounds that he did not invade Doug's privacy, 
specifically, that offering the evidence at trial months after the recordings had 
stopped had no bearing on the intrusion into Doug's privacy, that an attorney 
cannot be held liable for an invasion of privacy by "merelyâ€ providing legal services, 
and that the litigation privilege applies and immunizes Strait's conduct. 
[¶27.] Here, however, we conclude that Doug failed to present material 
evidence showing that Strait's conduct involved an actual invasion of Doug's 
privacy, which is a basic element of the tortious invasion of privacy claim. See 
Restatement (Second) of Torts Â§ 652B. Strait's handling of Mary's recordings does 
not constitute an invasion in and of itself. Mary's action of placing the recording 
device in Doug's office is the only invasion of Doug's privacy that occurred in this 
case. While Strait may have substantially assisted in Mary's conduct by accepting 
the recordings (an argument that relates to Doug's aiding and abetting claim 
against Strait), there is no evidence that any of Strait's actions invaded Doug's 
privacy. Mary initiated the clandestine recordings of Doug before she retained 
Strait, although the recordings continued with Strait's assistance downloading and 
storing the recordings after Mary engaged him. Doug has failed to present any 
argument or authority that Strait's acceptance of Mary's recordings on their own 
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were invasions by Strait into Doug's privacy. Without more, there is no question of 
fact for the jury regarding whether Strait's conduct constituted an invasion. 
[¶28.] As support for his contrary view, Doug points to the California 
Supreme Court's decision in Kimmel v. Goland, 793 P.2d 524 (Cal. 1990). In 
Kimmel, the plaintiffs began secretly recording the telephone conversations of a 
mobile home park manager in anticipation of litigation against the park. Id. at 526. 
The plaintiffs' attorney then used information gleaned from the recordings to file 
the lawsuit. Id. When management eventually discovered the recordings, they filed 
a cross-complaint for violation of California's Invasion of Privacy Act seeking 
damages against the plaintiffs and their attorney. Id. at 526â€“27. Importantly, the 
only claim against the attorney in Kimmel arose from "his alleged conduct in aiding 
and abetting a violation of the privacy act.â€ Id. at 531 (emphasis added). Therefore, 
Kimmel does not support Doug's claim that Strait's actions constituted an invasion 
of privacy, but it does support Doug's ability to bring an aiding and abetting claim 
against Strait for Mary's invasion of his privacy. Id. 
[¶29.] Kimmel is, however, also applicable to Strait's ability to claim 
protection under the litigation privilege for the claims that do arise against him. 
The attorney in Kimmel claimed he was shielded by the litigation privilege in 
section 47(2) of the California Civil Code precluding liability for publication or 
broadcasts made by an attorney in a judicial proceeding. Id. at 528. The California 
Supreme Court ultimately determined that the attorney, while immune from suit 
for broadcasting or publishing the information within a judicial proceeding, was not 
immune from an invasion of privacy suit for "noncommunicative actsâ€”the illegal 
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recording of confidential telephone conversationsâ€”for the purpose of gathering 
evidence to be used in future litigation.â€ Id. at 525 (emphasis added). 
[¶30.] Thus, the circuit court did not err in holding that Strait did not 
personally invade Doug's privacy by his actions in assisting Mary to download and 
retain the recordings, but Strait is not immune for any substantial assistance by 
way of aiding and abetting Mary to invade Doug's privacy. 
c. Strait's attempt to introduce the recordings as exhibits 
[¶31.] Doug also maintains that Strait's attempt to introduce the recordings 
into evidence constitutes an intentional invasion of his privacy. Strait submits that 
he is shielded from liability by the litigation privilege. We agree. 
[¶32.] "Defamation, including libel or slander, is statutorily defined as an 
unprivileged publication.â€ Harris v. Riggenbach, 2001 S.D. 110, ¶ 7, 633 N.W.2d 
193, 194; see also SDCL 20-11-3; SDCL 20-11-4. However, when such publications 
or communications are made under an existing privilege they are not actionable. 
Petersen v. Dacy, 1996 S.D. 72, ¶ 6, 550 N.W.2d 91, 92; Harris, 2001 S.D. 110, ¶ 7, 
633 N.W.2d at 194. Privileged communications are defined in SDCL 20-11-5, which 
includes a provision for communications made in "any legislative or judicial 
proceeding, or in any other official proceeding authorized by law[.]â€ SDCL 20-11- 
5(2). A communication made under SDCL 20-11-5(2) has an absolute privilege "and 
remain[s] privileged whether made with or without malice.â€ Peterson v. City of 
Mitchell, 499 N.W.2d 911, 915 (S.D. 1993). 
[¶33.] We have not previously considered the application of the litigation 
privilege in a case where an attorney's communication results in an alleged invasion 
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of privacy. However, it is well established that the circumstances under which 
there is an absolute privilege to publish defamatory matter and to publish any 
matter that is an invasion of privacy are the same in all respects. Restatement 
(Second) of Torts Â§ 652F, cmt. a (1977). This is because "[t]he defense of absolute 
privilege or immunity under the law of defamation avoids all liability. The salutary 
purpose of the privilege should not be frustrated by putting a new label on the 
complaint.â€ Harris, 2001 S.D. 110, ¶ 14, 633 N.W.2d at 196 (cleaned up). Adopting 
this rationale, we hold that the litigation privilege (an absolute privilege for 
publication of defamatory matter) applies in appropriate cases to an invasion of 
privacy claim as well. 
[¶34.] Four conditions must be met before an attorney is afforded the 
absolute litigation privilege: "the publication (1) was made in a judicial proceeding; 
(2) had some connection or logical relation to the action; (3) was made to achieve the 
objects of the litigation; and (4) involved litigants or other participants authorized 
by law.â€ Janklow v. Keller, 90 S.D. 322, 331, 241 N.W.2d 364, 368 (1976) (citation 
omitted). When we applied the litigation privilege in Janklow, we placed special 
emphasis "on the requirement that [statements by an attorney] be made in 
furtherance of the litigation and to promote the interests of justice.â€ Id. (citation 
omitted). 
[¶35.] It is undisputed that Strait offered the recordings during a judicial 
proceeding as part of Mary's divorce. Although Strait admitted in his deposition 
that the recordings would not affect the outcome of the divorce, they contained 
information minimally relevant to the contested issues. Mary requested a divorce 
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on the grounds of adultery and extreme cruelty, an award of alimony, and an 
equitable division of the parties' multi-million-dollar marital estate. The recordings 
contained evidence of Doug's affair and his net worth.10 And Doug does not dispute 
that he was the individual on the recordings that Strait attempted to introduce into 
evidence. Accordingly, Strait's attempt to introduce the recordings into evidence 
during a judicial proceeding, while misguided, are within the absolute privilege 
under SDCL 20-11-5(2). The circuit court did not err in granting summary 
judgment to Strait on the invasion of privacy claim.11 
Aiding and Abetting 
[¶36.] Doug next asserts that Strait aided and abetted Mary's invasion of his 
privacy for the same reasons already discussed. In response, Strait maintains that 
his actions in preserving Mary's evidence and attempting to introduce it are acts 
typical for an attorney engaged in litigation and therefore cannot be considered as 
substantially assisting Mary in her allegedly tortious conduct. 
[¶37.] Whether an attorney may aid and abet his client's invasion of 
another's privacy is a question of first impression. However, in Chem-Age 
Industries, Inc. v. Glover, we considered whether an attorney may aid and abet his 
client in breaching fiduciary duties owed to investors. 2002 S.D. 122, ¶ 41, 652 
N.W.2d at 773. In Chem-Age Industries, we applied the test from the Restatement 
10. This case was acrimonious in several respects. Doug was held in contempt of 
court during the proceedings for refusing to turn over assets that Mary was 
awarded pursuant to the decree of divorce. 
11. Our determination that Strait is shielded from liability for offering the 
recordings does not necessarily resolve the question whether this evidence 
may be relevant to the claims of aiding and abetting invasion of privacy. 
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(Second) of Torts Â§ 876(b) and concluded that "[f]or harm resulting to a third person 
from the tortious conduct of another, one is subject to liability if he knows that the 
other's conduct constitutes a breach of duty and gives substantial assistance or 
encouragement to the other so to conduct himself.â€ 2002 S.D. 122, ¶ 41, 652 N.W.2d 
at 773 (quoting Restatement (Second) of Torts Â§ 876(b) (1977)). This "substantial 
assistance requirement carries with it a condition that the lawyer must actively 
participate in the breach[.]â€ Id. ¶ 44, 652 N.W.2d at 774. Further, the attorney's 
assistance must be "knowing.â€ Id. ¶ 45, 652 N.W.2d at 775. 
[¶38.] We find this framework helpful in analyzing the issue here as to 
whether an attorney can aid and abet his client's invasion of another's privacy. In 
Chem-Age Industries, when recognizing the tort of aiding and abetting a client's 
breach of a fiduciary duty, we observed: 
On the one hand, overbroad liability might diminish the quality 
of legal services, since it would impose self-protective 
reservations in the attorney-client relationship. Attorneys 
acting in a professional capacity should be free to render advice 
without fear of personal liability to third persons if the advice 
later goes awry. On the other hand, the privilege of rendering 
professional services not being absolute, lawyers should not be 
free to substantially assist their clients in committing tortious 
acts. To protect lawyers from meritless claims, many courts 
strictly interpret the common law elements of aiding and 
abetting the breach of a fiduciary duty. 
2002 S.D. 122, ¶ 43, 652 N.W.2d at 774 (cleaned up). 
[¶39.] We conclude for the same reasons we discussed in Chem-Age Industries 
that in representing a client, an attorney "should not be free to substantially assist 
their clients in committing [the] tortious act[ ]â€ of invasion of privacy. Id. In fact, in 
recognizing a claim against an attorney for aiding and abetting an invasion of 
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privacy, the California Supreme Court rejected the claim that the threat of civil 
liability for such actions based on a violation of the privacy act may chill 
investigation and advocacy by attorneys, stating, "such forbearance is, in fact, 
healthy to the extent it inhibits an attorney from assisting clients in the commission 
of crimes.â€ Kimmel, 793 P.2d at 531. 
[¶40.] Additionally, a fundamental requirement of establishing a claim for 
aiding and abetting is the existence of an underlying tort. See Chem-Age Indus., 
2002 S.D. 122, ¶ 46, 652 N.W.2d at 775. Here, the circuit court denied Mary's 
motion for summary judgment regarding the existence of an invasion of privacy, 
permitting the questions whether Mary "intrude[d] upon conversations in which 
[Doug] had a reasonable expectation of privacyâ€ and "whether under the 
circumstances the intrusion was highly offensiveâ€ to be submitted to a jury. Prior to 
trial, however, Mary settled with Doug, thus avoiding a jury determination of 
liability. Notwithstanding Mary's settlement with Doug, this record presents 
genuine issues of material fact as to whether Mary invaded Doug's privacy and 
whether Strait substantially assisted Mary in doing so. 
[¶41.] Strait argues that no claim for invasion of privacy can be asserted by 
Doug because he did not have a reasonable expectation of privacy in his office. A 
reasonable expectation is an essential element not just for the invasion of privacy 
claim, but also for the claims of aiding and abetting invasion of privacy. Strait cites 
Fourth Amendment cases providing that an individual has a lesser privacy interest 
in commercial premises than in one's home. See New York v. Burger, 482 U.S. 691, 
700, 107 S. Ct. 2636, 2642, 96 L. Ed. 2d 601 (1987) ("An expectation of privacy in 
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commercial premises, however, is different from, and indeed less than, a similar 
expectation in an individual's home.â€). However, none of the cases cited by Strait 
are factually analogous to the circumstances involving Doug's office. 
[¶42.] Doug's office had a door that closed between his office and the shop, 
and the door from his office to outside the building had a lock to which both Doug 
and Mary had a key. Further, Doug would at times sleep overnight in the office as 
it had kitchen appliances, a restroom, and shower facilities. Most of the recordings 
were made late at night after the business was closed. Doug's office door was closed 
during these times and there is no evidence that anyone would have been able to 
observe or overhear Doug's conversations or actions. Although Mary had access to 
the office, there is no evidence she or anyone else ever entered his office after 
business hours. In fact, Mary testified that she placed the recording device in 
Doug's office late in the day because she knew he would spend his free time alone in 
the office at night after the business was closed. These facts present substantial 
evidence tending to show that Doug had a reasonable expectation of privacy in his 
office, and the circuit court correctly determined that the case could proceed past 
summary judgment on the issue of whether Doug had a reasonable expectation of 
privacy during the time Mary was recording his conversations. 
[¶43.] Additionally, to establish a claim for aiding and abetting invasion of 
privacy, Doug must not only show that Strait provided substantial assistance to 
Mary in committing the tort of invasion of privacy, but also that Strait had the 
intent to commit the intentional tort of invasion of privacy. In other words, the 
aider and abettor must have the same intent as the principal to be held liable for 
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the intentional tort of invasion of privacy as the aider and abettor. "Intentional 
tortious conduct occurs when a person acts either for the purpose of causing or with 
knowledge to a substantial certainty that their act will cause an invasion of the 
interest of another in a way that the law forbids.â€ Kjerstad, 517 N.W.2d at 429. 
[¶44.] In Chem-Age Industries, we recognized that to aid and abet an 
intentional tort, an attorney must render substantial assistance by actively 
participating in a client's wrongful conduct and that the attorney must have acted 
knowing that the actions would allow the client to accomplish the wrong. 2002 S.D. 
122, ¶ 44, 652 N.W.2d at 774â€“75. 
[¶45.] On the question whether Strait provided substantial assistance to 
Mary to accomplish the act of invasion of privacy, the Restatement (Second) of Torts 
Â§ 876 cmt. d sets forth several relevant factors, including "the nature of the act 
encouraged, the amount of assistance given by the defendant, his presence or 
absence at the time of the tort, his relation to the other and his state of mind[.]â€ 
Further, the defendant is not ordinarily liable for other's acts that were not 
foreseeable by him. Id. 
[¶46.] On this record, genuine issues of material fact exist concerning 
whether Mary committed an invasion of privacy, whether Strait provided 
substantial assistance to invade Doug's privacy, and whether Strait acted with 
knowledge to a substantial certainty that an invasion of Doug's privacy would occur. 
Viewing the evidence in the light most favorable to Doug establishes that Strait 
knew for approximately a month that Mary was secretly placing the recording 
device in Doug's office, and that Strait assisted her in downloading and storing the 
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recordings. Strait's staff, at his direction and with his knowledge, regularly 
received the recording device from Mary, downloaded the recordings on the law 
office's server, burned the recordings onto a CD that would be given to Mary, 
deleted the recordings from the recording device, and then would return the device 
to Mary so she could obtain more recordings. Mary testified that she was unable to 
download the recordings from the device on her own and relied on Strait's staff to 
assist her. Mary also testified that she continued to make these recordings until 
sometime in January when Strait advised her to stop because the activity could be 
illegal. Significantly, there is also evidence suggesting that the reason Mary 
frequently brought the recording device to Strait's office was so that the recordings 
could be preserved and then erased from the device to allow Mary to make more 
recordings. 
[¶47.] Consideration of these facts in the light most favorable to Doug 
supports a reasonable inference that Mary could not have continued the secret 
recordings had it not been for Strait's paralegal's actions in downloading and 
freeing up space on her recording device, and that Strait knew that he was 
facilitating her conduct. Therefore, summary judgment is inappropriate on this 
claim because there are genuine questions of material fact regarding whether Strait 
knowingly provided substantial assistance to Mary in her invasion of Doug's 
privacy. For this reason, the circuit court erred in granting Strait summary 
judgment on Doug's claim against Strait for aiding and abetting Mary's invasion of 
privacy. 
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Civil Conspiracy 
[¶48.] Finally, Doug contends that because Strait's actions "mirror[ed] the 
elements of civil conspiracy,â€ the circuit court erred by dismissing Doug's claim. 
Specifically, Doug claims that Strait and Mary had a "meeting of the mindsâ€ to 
commit tortious conduct because Strait (1) knew that Mary's recordings were 
unlawful, (2) knew that Mary wanted to introduce the embarrassing recordings as 
evidence, and (3) attempted to introduce those recordings into evidence. 
[¶49.] In response, Strait first argues that an attorney cannot conspire with 
his client as a matter of law. Alternatively, Strait argues that the undisputed facts 
do not establish an agreement between Mary and Strait to commit a tortious act 
because Mary recorded Doug of her own volition. In furtherance of his claim that he 
did not agree to record Doug, Strait submits that Mary wanted to determine if Doug 
was having an affair, but that he had no intention of using the evidence at trial 
because resolution of the case dealt primarily with division of the marital estate. 
[¶50.] We have long recognized a cause of action for civil conspiracy despite 
not having applied this cause of action in the specific context of attorneys conspiring 
with their clients. Reuben C. Setliff, III, M.D., P.C. v. Stewart, 2005 S.D. 40, ¶¶ 26â€“ 
27, 694 N.W.2d 859, 866â€“67. To establish a prima facie case of civil conspiracy, a 
plaintiff must prove the following: 
(1) two or more persons; 
(2) an object to be accomplished; 
(3) a meeting of the minds on the object or course of action to be 
taken; 
(4) the commission of one or more unlawful overt acts; and 
(5) damages as the proximate result of the conspiracy. 
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Id. ¶ 27, 694 N.W.2d at 866â€“67. "This is not an independent cause of action, but is 
sustainable only after an underlying tort claim has been established. A civil 
conspiracy is, fundamentally, an agreement to commit a tort.â€ Id. ¶ 27, 694 N.W.2d 
at 867 (cleaned up). Before Doug could prevail on his conspiracy claim, he would be 
required to prove at trial that Mary committed the underlying tort of invasion of 
privacy. 
[¶51.] In granting summary judgment for Strait, the circuit court held: 
With the first two cause[s] of action dismissed[,] there is now no 
underlying tort claim.[ ] Additionally, the first element of civil 
conspiracy is the requirement that there be "two or more 
personsâ€ involved. That was not the case. There was no 
meeting of the min[d]s. 
The exact basis for the circuit court's holding is somewhat unclear. The court may 
have granted summary judgment because it concluded that an attorney cannot 
conspire with his or her client as a matter of law, or the court may have determined 
that there was no agreement between Mary and Strait to commit a tort. 
Additionally, the court may have held that the evidence showed that both elements 
of conspiracy were missing. 
[¶52.] While there may be questions of fact concerning the other elements of 
conspiracy, the circuit court's holding that Mary and Strait cannot be considered as 
two separate individuals is a question of law suitable for review. To make a prima 
facia case of civil conspiracy, the first element, that there are "two or more personsâ€ 
involved, must be met. Setliff, 2005 S.D. 40, ¶¶ 26â€“27, 694 N.W.2d at 866â€“67. 
Strait argues that a client and his or her attorney as principal and agent cannot be 
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classified as separate individuals for the purpose of meeting the first element of a 
conspiracy claim when the attorney is acting as a representative of the client. 
[¶53.] In support of this argument, Strait likens the existence of a conspiracy 
claim in attorney-client relationships to the intra-corporate conspiracy doctrine. In 
Sisney v. Best Inc., we held that a corporate employer and employee cannot conspire 
with each other because a corporation cannot conspire through its agents when the 
agent is acting within the scope of employment. See 2008 S.D. 70, ¶ 10 n.3, 754 
N.W.2d 804, 809 n.3. The doctrine is helpful in framing the issue here. Just as a 
corporation and its agent cannot conspire with each other when the agent is acting 
within the scope of employment, so too a client and an attorney cannot conspire 
with each other when the attorney is within the scope of his or her representation.12 
In both situations, the principal and agent are not separate individuals. For this 
reason, civil conspiracy under these facts between Strait and Mary is a legal 
impossibility and Doug's claim of civil conspiracy fails on this ground. 
.

Outcome:

We reverse the entry of summary judgment as to Dougâ€™s claim in 
Count 2 (aiding and abetting), but we affirm the entry of summary judgment as to 
Counts 1 and 3.

Plaintiff's Experts:

Defendant's Experts:

Comments:

About This Case

What was the outcome of GANTVOORT v. RANSCHAU?

The outcome was: We reverse the entry of summary judgment as to Dougâ€™s claim in Count 2 (aiding and abetting), but we affirm the entry of summary judgment as to Counts 1 and 3.

Which court heard GANTVOORT v. RANSCHAU?

This case was heard in <center><h4> THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA On appeal from The CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT DEUEL COUNTY, SOUTH DAKOTA </center></h4>, SD. The presiding judge was Janine M. Kern.

Who were the attorneys in GANTVOORT v. RANSCHAU?

Plaintiff's attorney: Pierre, SD - Best Divorce Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.. Defendant's attorney: ROBERT D. TRZYNKA.

When was GANTVOORT v. RANSCHAU decided?

This case was decided on April 10, 2022.