JERRY W. CEDAR, Plaintiff and Appellant,
BRUCE JOHNSON, Defendant and Appellee.
ON OCTOBER 2, 2018
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN
COUNTY, SOUTH DAKOTA THE HONORABLE RICHARD A. SOMMERS JUDGE
A. CHRISTENSON Attorney for plaintiff Sioux Falls, South
Dakota and appellant.
J. COGLEY of Ronayne and Cogley, P.C. Attorneys for defendant
Aberdeen, South Dakota and appellee.
Jerry Cedar (Cedar) brought an action for alienation of
affections against Bruce Johnson for causing the end of
Cedar's marriage to Leslie Cedar (Leslie). At the close
of Cedar's case-in-chief at trial, Johnson moved for
judgment as a matter of law. The court granted the motion
determining that Cedar failed to present evidence of his
damages. Cedar appealed the dismissal of the action. Johnson
filed a notice of review, arguing the circuit court erred in
denying his other grounds for dismissal as a matter of law.
We affirm in part, reverse in part, and remand.
and Procedural History
Cedar and Leslie were married in Kansas in 2000. Early in the
marriage the couple conceived their only child, N.C. In 2006,
the family moved to Wisconsin to help care for Leslie's
father. In 2007, Leslie began an online relationship over
Facebook. Cedar discovered the relationship, and the couple
briefly attended couple's counseling to rehabilitate
The couple moved to Frederick, South Dakota in September
2014. In April 2015, Leslie began working at the Titan Bar, a
local restaurant owned by Johnson. Johnson had recently
purchased the restaurant after moving to Frederick. Cedar
occasionally worked for Johnson in the evenings as a cook.
All the parties agree that the relationship between Johnson
and Leslie was initially purely professional.
Johnson lost his wife to cancer around May 2015. Cedar
testified that at some point thereafter, Johnson and Leslie
began frequently texting one another during non-work hours.
Cedar also testified that Johnson started paying special
attention to Leslie and seemed eager to be around her. Cedar
presented evidence that Johnson would bring Leslie coffee,
donuts, soda, and gave her gifts. Cedar testified that he
noticed that Leslie's affections for him began to change
in August or September of 2015.
Johnson testified that he initially had no romantic interest
in Leslie, but began to develop feelings for her in the fall
of 2015. Johnson and Leslie both testified that they did not
express romantic feelings toward one another until late
September 2015. Johnson and Leslie both testified that their
relationship did not become sexual until November 2015 when
they had sexual relations once in Johnson's restaurant
office and once at his home. Johnson testified that he was
initially hesitant to start a relationship with Leslie
because she was married, but felt more comfortable doing so
after learning Leslie felt no attachment to Cedar and
considered her marriage to be over.
Leslie told Cedar about her relationship with Johnson in
November 2015. Cedar testified that Leslie told him at this
time "that he (Johnson) worked his charm on her . . .
and she fell for it." Cedar claimed that he told Leslie
that he was willing to try to work things out if she would
stop seeing Johnson and quit her job at the restaurant.
Instead, Leslie moved out of the home on November 20, 2015,
and moved in with Johnson. In April 2016, Cedar filed for
divorce which was finalized on June 26, 2016.
On February 4, 2016, Cedar filed this action for alienation
of affections against Johnson seeking compensatory and
punitive damages. After Cedar filed the lawsuit, Leslie
claimed that she also had a sexual relationship with another
man, Archibald "Junior" Linthorne for approximately
two weeks in September 2015. Leslie testified this was before
her relationship with Johnson started.
During those two weeks, Leslie testified she had sex with
Junior twice, once at his home and once in an abandoned
farmhouse in Frederick. Johnson testified that he was unaware
of the relationship between Leslie and Junior until
approximately December 2015. Cedar testified that he did not
believe that a sexual relationship occurred between Leslie
and Junior. He claimed that Johnson and Leslie had fabricated
the story with Junior to help Johnson's case. Cedar
testified that he visited the abandoned farm house in 2016
after he learned of the alleged affair. During this visit,
Cedar took pictures of the farm house showing it was
difficult to enter and that the house was locked to prevent
On December 19, 2016, Johnson filed a motion for summary
judgment arguing that no genuine issue of material fact
existed to show that Johnson caused the alienation of
Leslie's affections toward Cedar. The court denied the
motion. Less than a week before trial, Johnson filed a motion
to dismiss or in the alternative a motion for summary
judgment. In this motion, Johnson argued that the case should
be dismissed because the claim for alienation of affections
violated public policy and renewed the original basis for
A jury trial commenced on September 28, 2017. Cedar presented
testimony from himself, Johnson, and Leslie. During his
testimony, Cedar expressed that he and Leslie were loving and
affectionate toward one another until Leslie's
relationship with Johnson started. Cedar presented Facebook
messages from Leslie and a photo from 2014 in support of his
testimony. Cedar also presented evidence that on their
fifteenth wedding anniversary in August 2015, Leslie posted a
Facebook message with a picture of a ring stating that she
would like an anniversary ring for their 20th anniversary.
Cedar also presented an August 2015 Facebook message from
Leslie stating, "[fifteenth] Anniversary to
Jc…did ya think we would make it this far lol???
Here's to the next [fifteen]!!!." Cedar also
testified that he and Leslie continued to be physically
intimate, that they spent time together, and that they told
one another they "loved each other" every night
before falling to sleep. Leslie acknowledged she and Cedar
occasionally had sex, but that she felt no feelings or
affection toward Cedar since at least 2011. Leslie testified
that she only intended to stay with Cedar until N.C. turned
eighteen. She described the relationship between her and
Cedar to be more like roommates than a marriage.
Cedar was asked during his testimony about the effect
Leslie's separation had upon him. Cedar expressed that he
missed being married to Leslie "every day and every
night." He explained that he missed her love and
affection, seeing her smile in the morning, and hearing her
tell him she loved him every night. Cedar also discussed the
things they did together during the marriage, such as raising
livestock and taking trips. Cedar explained that he had been
"emotional" ever since he learned of her affair
with Johnson and that losing Leslie had put him and their son
"through heck." Cedar also testified that he
regretted having to raise N.C. in a broken home. Cedar did
not claim any pecuniary loss or testify to a specific dollar
amount of damages.
At the conclusion of Cedar's evidence, Johnson moved for
judgment as a matter of law on several grounds. The circuit
court granted the motion on the question of damages reasoning
that Cedar had failed to provide testimony as to the amount
of his damages. The court denied the other grounds for
dismissal asserted by Johnson. On October 4, 2017, the court
entered an order dismissing the claim for alienation of
Cedar filed a notice of appeal and, by way of notice of
review, Johnson requested review of the circuit court's
denial of his other grounds for dismissal as a matter of law.
The parties' briefs raise the following issues:
1. Whether the circuit court erred by determining as a matter
of law that Cedar failed to present sufficient evidence as to
the amount of his damages.
2. Whether the circuit court erred in not granting
Johnson's motion for judgment as a matter of law on