APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT HAMLIN COUNTY, SOUTH DAKOTA HONORABLE TIM D. TUCKER Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice (on reassignment).
CONSIDERED ON BRIEFS ON NOVEMBER 4, 2008
REASSIGNED DECEMBER 29, 2008
[¶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.
[¶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. 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.*fn1
[¶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.*fn2 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 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 judgment on the intentional infliction of emotional distress claim,*fn3 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,*fn4 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 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.
[¶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 ...