#24491, rev & rem 

#24492, #24498-a-MILLER, Retired Justice 

2008 SD 19 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

(#24491) 

CHERYL D. JACOBSON, Plaintiff and Appellant, 

 v. 

KEVIN LEISINGER, Defendant and Appellee. 

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(#24492, #24498) 

CHERYL D. JACOBSON, Plaintiff and Appellee, 

v. 

KEVIN LEISINGER, Defendant and Appellant 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE STUART L. TIEDE 

Judge 

* * * * 

PATRICIA A. MEYERS of 

Costello, Porter, Hill, Heisterkamp, 

 Bushnell & Carpenter, LLP 

Rapid City, South Dakota Attorneys for appellant (#24491).

 Attorneys for appellee (#24492). 

DAVID M. HOSMER 

Yankton, South Dakota Attorney for appellant (#24492). 

 Attorney for appellee (#24491). 

* * * * 

ARGUED JANUARY 8, 2008 

 OPINION FILED 03/12/08 
-1- 

#24491, #24492, #24498 

MILLER, Retired Justice 

[¶1.] This opinion encompasses two separate appeals dealing with the same 

parties but involving independent issues and facts. Each will be addressed 

separately. In #24991, Cheryl Jacobson appeals the circuit court’s decision denying 

her request for attorney fees, and in #24492 & #24498, Kevin Leisinger appeals the 

circuit court’s dismissal of his defamation action against Jacobson. 

JACOBSON’S APPEAL FOR ATTORNEY FEES 

[¶2.] This dispute flows from our holding in Leisinger v. Jacobson, 2002 SD 

108, 651 NW2d 693 (Leisinger I). In that case, this Court rejected a punitive 

damage award in the amount of $120,000 in favor of Leisinger and against 

Jacobson. We held that the punitive damage award should either be reduced to 

$25,000, or alternatively, should Leisinger reject the reduced award, a new trial 

could be conducted solely on the issue of punitive damages. Id. ¶25. Leisinger 

rejected the reduced award and thereafter failed to retry his case within one year of 

the remand, as required by SDCL 15-30-16. Therefore, he forfeited any right to the 

punitive damages which had previously been paid by Jacobson. 

[¶3.] Despite our decision in Leisinger I, Leisinger did not return the 

$120,000 to Jacobson. She therefore moved the circuit court for an order requiring 

the return of the money. In a memorandum opinion of December 20, 2002, Circuit 

Judge Severson held that “on August 21, 2002[, the date of the decision of Leisinger 

I], [Leisinger] had an obligation to return the benefits he had received from the 

prior Judgment – $120,000 – to [Jacobson].” Judge Severson entered a formal order 

to that effect on February 24, 2003. Leisinger did not comply with nor did he appeal 
#24491, #24492, #24498 

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that order requiring him to return the money. (Apparently, no formal notice of 

entry of the order was served upon Leisinger.) 

[¶4.] Jacobson then sought a contempt order against Leisinger for his 

failure to comply with the February 24, 2003 order, but the circuit court did not rule 

on that motion. Jacobson later filed a formal notice of entry of the February 24, 

2003 repayment order. Leisinger then appealed that order, however, therein he 

merely contested the award of interest. This Court summarily affirmed the order 

holding that Leisinger’s appeal was “without merit.” (Appeal No. 23287). 

[¶5.] On November 24, 2003, Jacobson filed a conversion action against 

Leisinger basing her claim on Leisinger’s failure to comply with the February 24, 

2003 order to return the $120,000. Leisinger countersued alleging many causes of 

actions, all independent of the money issues. The circuit court ultimately granted 

Jacobson’s summary judgment motion holding that Leisinger’s failure to return the 

money amounted to conversion as a matter of law. 

[¶6.] While the foregoing conversion action was pending, Leisinger 

petitioned this Court for a rehearing of Leisinger I, and also sought to have 

Jacobson held in “contempt.” He contended that Leisinger I was founded on 

Jacobson’s perjured testimony. We denied the motion. 

[¶7.] On December 21, 2004, Jacobson moved the circuit court for an order 

requiring Leisinger to show cause for his failure to comply with the February 24, 

2003 order. At the hearing, the circuit court (Judge Zell) converted the order to a 

judgment. As a result of failing to be served with process, rather than for lack of 
#24491, #24492, #24498 

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notice,1 neither Leisinger nor his attorney attended the hearing. Jacobson, 

however, later filed a formal written motion requesting an amendment of the 

“order” to a “judgment.” That motion was granted on February 24, 2005. Leisinger 

appealed such judgment which was ultimately summarily affirmed by this Court 

wherein we held the appeal was “without merit.” (Appeal No. 23618). Jacobson 

ultimately recovered the $120,000 on October 28, 2005.2 

[¶8.] Jacobson then sought recovery of the attorney fees she incurred in the 

various court proceedings required to recover the $120,000. The circuit court 

rejected her request, citing Schuldies v. Millar, 1996 SD 120, 555 NW2d 90. 

Jacobson appeals. We reverse and remand. 

[¶9.] Whether the circuit court erred by failing to award 

attorney fees. 

 

[¶10.] Jacobson argues that she has a right to recover the reasonable cost of 

attorney fees she specifically incurred in unwarranted legal proceedings to recover 

her wrongfully withheld property. We agree. 

[¶11.] It is clear and undisputed that Leisinger wrongfully withheld 

Jacobson’s $120,000. Subsequent to Leisinger’s rejection of the reduced punitive 

damages award, in Leisinger I, the portion of the trial court judgment regarding 

1. Leisinger’s attorney had actual notice of the hearing, and the record reflects 

that a woman who attended the hearing was determined to have been sent by 

Leisinger. 

2. On July 1, 2005, the money was deposited with the Minnehaha County Clerk 

pending an appeal of Judge Zell’s order amending the original February 23, 

2003 “order” to a “judgment.” This Court summarily affirmed Judge Zell’s 

order. Jacobson did not recover the money until after the summary 

affirmance of the appeal. 
#24491, #24492, #24498 

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punitive damages was vacated. 2002 SD 108, ¶25, 651 NW2d at 701. Accordingly, 

“[a] judgment vacated on appeal is of no further force and effect.” Gluscic v. Avera 

St. Luke’s, 2002 SD 93, ¶18, 649 NW2d 916, 920 (citations omitted); see also Hasse 

v. Fraternal Order of Eagles No. 2421 of Vermillion, 2003 SD 23, ¶9, 658 NW2d 410, 

413 (citations omitted); Aune v. B-Y Water Dist., 505 NW2d 761, 764-65 (SD 1993) 

(quoting Pendergast v. Muns, 59 SD 135, 142, 238 NW 344, 347 (1931)). Therefore, 

Leisinger’s rejection of the reduced award represented a simultaneous forfeiture of 

any rights in the previously acquired punitive damage award. 

[¶12.] We conclude that Leisinger indefensibly and unlawfully withheld the 

$120,000. Judge Severson’s decision of December 20, 2002, granting Jacobson’s 

request for an order requiring Leisinger to return the $120,000 with interest, 

unequivocally informed Leisinger that his retention of the funds was unlawful. 

Moreover, Leisinger cannot argue in good faith that he believed the money could 

legally remain in his possession pending any appeals; indeed, in the original suit 

Leisinger acquired the $120,000, constituting the punitive damage award, via a writ 

of execution prior to Leisinger I reversing the same award. Leisinger may not now 

complain of being harmed by the forced repayment as he bore the risk by taking the 

money prior to completion of the appellate process. Hasse, 2003 SD 23, ¶11, 658 

NW2d at 413-14. 

[¶13.] Jacobson contends that although Schuldies v. Millar, supra, does not 

permit recovery of attorney fees for the actual litigation of the conversion lawsuit, 

reasonable attorney fees expended in pursuit of the money, unrelated to the 

conversion action, are separable and recoverable. We agree. 
#24491, #24492, #24498 

-5-

[¶14.] Generally, without specific authority to the contrary, attorney fees are 

not recoverable in civil actions. However, we agree with and now adopt the 

rationale that: “. . . in conversion cases, the reasonable and necessary expenses 

incurred in recovering the property are a proper element of damage. In such cases, 

the expense of recovery is a ‘further pecuniary loss’ recoverable under the 

Restatement rule.” State v. Taylor, 506 NW2d 767, 768 (Iowa 1993) (citing 

RESTATEMENT (SECOND) OF TORTS § 927(2)(b) (1977) (other citations omitted) 

(emphasis added)). In this case, and as is the practice in other states, the damages 

must be bifurcated between “attorney fees incurred as a result of the conversion 

litigation as compared to attorney fees incurred in recovering possession of the 

property. The former are not compensable, the latter are.” Motors Ins. Corp. v. 

Singleton, 677 SW2d 309, 315 (KyCtApp 1984). 

[¶15.] Attorney fees are not generally recoverable in actions sounding in tort 

“except those fees incurred in other litigation which is necessitated by the act of the 

party sought to be charged.” Grand State Property, Inc. v. Woods, Fuller, Shultz, & 

Smith, P.C., 1996 SD 139, ¶19, 556 NW2d 84, 88 (emphasis added) (noting that 

separate litigation necessitated by the misconduct of the other party may permit 

recovery of attorney fees); Isaac v. State Farm Mut. Auto. Ins. Co., 522 NW2d 752, 

763 (SD 1994). Moreover, Leisinger, by his intentional and calculated action, left 

Jacobson with only one course of action, i.e., further litigation. See Rorvig v. 

Douglas, 123 Wash2d 854, 862, 873 P2d 492, 497 (1994); RESTATEMENT (SECOND) OF 

TORTS § 914 cmt a (1977); Liles v. Liles, 289 Ark 159, 177, 711 SW2d 447, 

456 (1986). 
#24491, #24492, #24498 

-6-

[¶16.] Recovery of attorney fees expended by Jacobson to force Leisinger to 

release her money may be analogized with the case of Foster v. Dischner, 51 SD 102, 

212 NW 506 (1927). In Foster, the plaintiff sued for attorney fees incurred in 

releasing an unlawful levy of his property. Although the property remained in the 

possession of the plaintiff, he was still entitled to attorney fees as damages incurred 

in releasing the levy. Id. at 507; see also Baird v. Liepelt, 62 IllApp2d 154, 156-57, 

210 NE2d 1, 2 (1965). Here, Jacobson seeks similar damages, which resulted from 

her attempt to recover her property. Like the unlawful paper levy attached in 

Foster, Leisinger’s unlawful possession of Jacobson’s money amounted to a de facto

levy/pledge. See RAY D. HENSON, SECURED TRANSACTIONS: UNDER THE UNIFORM 

COMMERCIAL CODE § 4—26 (West 1978). Indeed, Leisinger argued that if he “were 

to give said funds to [Jacobson], and [Leisinger] is later successful in a damage 

award against [Jacobson], then [Leisinger] will never recover said damages.” 

Similar to the unlawful levy in Foster, Leisinger’s argument demonstrates his 

desire to unlawfully withhold Jacobson’s money as security for a future lawsuit that 

may never be allowed (and in fact never was allowed). Therefore, as in Foster,

Jacobson is entitled to reasonable attorney fees incurred in recovering the release of 

her property. (However, as conceded at oral argument, Jacobson is not entitled to 

any attorney fees incurred after the February 24, 2003 order was converted into a 

judgment.) 

[¶17.] Additionally, although Jacobson’s action may have been pleaded in 

conversion, the lawsuit is more complicated than the typical conversion pleadings. 

Here, Leisinger defied multiple court orders requiring him to repay the $120,000. 
#24491, #24492, #24498 

-7-

Instead of asserting his right to possess the money, Leisinger conjured up other 

legal arguments which did not proffer a genuine defense to his unlawful possession 

of the money. Moreover, all of Leisinger’s legal arguments regarding the $120,000, 

or the interest accruing on the same, failed as meritless before the circuit court and 

this Court. Even after we rejected Leisinger’s motion for a rehearing regarding the 

reversal of punitive damages, he still refused and failed to repay the money. We 

find that Leisinger “has not merely refused to pay a judgment, he has refused to 

obey an affirmative court order.” DAN B. DOBBS, LAW OF REMEDIES: DAMAGES—

EQUITY—RESTITUTION § 3.10(3) (West 2nd ed 1993). Therefore, attorney fees may 

be appropriately awarded at the discretion of the trial court upon a determination 

that the failure to comply with the order rose to the level of contempt. Although no 

contempt of court sanction was specifically implemented in this case, courts have 

inherent authority to act sua sponte and order the payment of opposing party’s 

reasonable attorney fees if the party’s actions rise to the level of litigation 

misconduct. See id. 

[¶18.] We reverse and remand to the circuit court for proceedings consistent 

herewith. 

LEISINGER’S APPEAL OF DISMISSAL OF DEFAMATION CLAIM 

[¶19.] Leisinger initially sued Jacobson for malicious prosecution. The 

lawsuit was based on false information Jacobson allegedly provided to police which 

led to Leisinger being falsely arrested nine times. He prevailed in that action. In 

the summer of 2001, approximately thirty hours after the jury found for Leisinger 

in the malicious prosecution lawsuit, a 911 emergency call was placed from 
#24491, #24492, #24498 

-8-

 

Jacobson’s residence. When the police arrived they were unable to locate her. 

Eventually, the sound of “moaning” led the officers to Jacobson who was laying face 

down in calf-high grass about thirty to forty yards from her residence. 

[¶20.] Jacobson told the police that she heard an “alarm” alert and then was 

struck in the back of her head. She claimed to not know how she ended up face 

down in the grass. Detective Balfe examined Jacobson’s head and saw no signs of 

an assault: “there was no redness or swelling or bleeding or anything at the back of 

her head.” Therefore, no pictures were taken of the alleged injury. 

[¶21.] An ambulance transported Jacobson to the hospital where Detective 

Balfe interviewed her. She allegedly accused Leisinger of attacking her, stating: 

“Kevin had something to do with this. I don’t have anything to prove it, but he had 

something to do with it.” After further questioning, she allegedly continued to 

accuse Leisinger of being responsible for the purported attack. (No criminal charges 

flowed from this claimed attack.) 

[¶22.] In December 2003, based on these and other accusations related to the 

alleged 2001 attack, Leisinger sued Jacobson for defamation. This claim was 

contained in a permissive counter-claim to Jacobson’s unrelated conversion lawsuit 

filed against Leisinger. Jacobson moved for summary judgment based on 

Leisinger’s failure to bring the suit within the two-year statute of limitations.3 The 

 (continued . . .) 

3. Jacobson also moved for summary judgment contending that no claim for 

defamation may be based on any communication made “[i]n any legislative or 

judicial proceeding, or in any other official proceeding authorized by law.” 

SDCL 20-11-5(2). The circuit court denied this motion. Although Jacobson 

filed a notice of review on the denial, we do not reach this issue for two 

reasons. First, denials of summary judgment motions do not constitute final 
#24491, #24492, #24498 

-9-

________________________ 

(. . . continued) 

circuit court granted Jacobson’s motion, holding that the alleged act occurred over 

two years prior to Leisinger filing the lawsuit and that Leisinger had actual 

knowledge of the defamatory act over two years prior to the lawsuit being filed. 

Therefore, the circuit court granted Jacobson's motion for summary judgment and 

dismissed Leisinger’s counter-claim. Leisinger appeals and we affirm. 

[¶23.] Whether the circuit court erred when it dismissed 

Leisinger’s defamation claim. 

STANDARD OF REVIEW 

[¶24.] Our standard of review regarding summary judgment is well 

established: 

[W]e 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 whether the law was correctly applied. 

If there exists any basis which supports the ruling of the trial 

court, affirmance of a summary judgment is proper. 

Cooper v. James, 2001 SD 59, ¶6, 627 NW2d 784, 787 (citation omitted). When 

summary judgment is granted on a statute of limitations defense: 

The burden of proof is upon the movant to show clearly that 

there is no genuine issue of material fact and that he is entitled 

judgments, and therefore are not reviewable without good cause. Big Sioux 

Twp. v. Streeter, 272 NW2d 924, 926 n1 (SD 1978) (noting unless a trial court 

indicates there is “good cause to appeal” we will not review orders that do not 

amount to a final judgment). Second, based on our holding, below, we need 

not address Jacobson’s issue. 
#24491, #24492, #24498 

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to judgment as a matter of law. When faced with “‘a summary 

judgment motion where the defendant asserts the statute of 

limitations as a bar to the action and presumptively establishes 

the defense by showing the case was brought beyond the 

statutory period, the burden shifts to the plaintiff to establish 

the existence of material facts in avoidance of the statute of 

limitations[.]’” It is well settled that “‘[s]ummary judgment is 

proper on statute of limitations issues only when application of 

the law is in question, and not when there are remaining issues 

of material fact.’” Generally, a statute of limitations question is 

left for the jury; however, deciding what constitutes accrual of a 

cause of action is a question of law and reviewed de novo. 

Id. ¶7, 627 NW2d at 787 (citations omitted). 

ANALYSIS AND DECISION 

[¶25.] Leisinger argues that the circuit court erred when it interpreted the 

statute of limitations for defamation actions as accruing on occurrence of the tort 

rather than his discovery. Moreover, he claims that application of the “discovery 

rule” would position his pursuit of this action within the statute of limitations. 

[¶26.] The statute of limitation for a defamation action is provided in SDCL 

15-2-15.4 Thereunder, a defamation lawsuit must be commenced within two years 

from the accrual of the cause of action. 

[¶27.] Leisinger first argues that the “accrual” date of his cause of action for 

defamation, under SDCL 15-2-15, relates to the date when he, the victim, had 

actual or constructive notice of the defamation, citing Strassburg v. Citizens State 

 

4. Pertinent portion of SDCL 15-2-15 reads: 

Except where, in special cases, a different limitation is 

prescribed by statute, the following civil actions other than for 

the recovery of real property can be commenced only within two 

years after the cause of action shall have accrued: 

(1) An action for libel, slander, . . . 
#24491, #24492, #24498 

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Bank, 1998 SD 72, ¶10, 581 NW2d 510, 514 (stating “statute of limitations 

ordinarily begins to run when the plaintiff either has actual notice of a cause of 

action or is charged with notice”) and other similar cases as authority. However, 

none of the cases cited specifically interpret SDCL 15-2-15, nor do they discuss 

defamation. See Strassburg, 1998 SD 72, ¶10, 581 NW2d at 514 (conversion claim 

accruing under SDCL 15-2-13); Wassink v. Van De Stroet, 1999 SD 92, ¶¶8, 12, 598 

NW2d 213, 215-16 (breach of contract, conversion, unjust enrichment (constructive 

trust), accruing under SDCL 15-2-13); Huron Center, Inc. v. Henry Carlson Co., 

2002 SD 103, ¶¶5, 11, 650 NW2d 544, 546-47 (breach of contract accruing under 

SDCL 15-2-13). 

[¶28.] As noted earlier, Leisinger’s cause of action for defamation is governed 

by SDCL 15-2-15. Generally the accrual date for a defamation action begins on the 

publication5 of the defamatory act. Davenport v. City of Corning, 2007 WL 

3085797, at *6 (IowaCtApp 2007); Hayes v. Blue Cross Blue Shield of Minnesota, 

Inc., 21 FSupp2d 960, 978 (DMinn 1998); LaPan v. Myers, 241 Neb 790, 792, 491 

NW2d 46, 49 (1992); White v. Fawcett Publications, 324 FSupp 403, 404-05 (DCMo 

1971); see also Francis M. Dougherty, Limitation of Actions: Time of Discovery of 

Defamation as Determining Accrual of Action, 35 ALR4th 1002, § 2 (1985). 

[¶29.] Alternatively Leisinger argues for the adoption of the “inherently 

undiscoverable” doctrine. He asserts that because the alleged defamatory material 

 

5. Black’s Law Dictionary defines publication, in the defamation context, as: 

“[t]he communication of defamatory words to someone other than the person 

defamed.” 1242 (7thed. 1999). 
#24491, #24492, #24498 

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was statutorily confidential6 he cannot be charged with having knowledge of the 

acts until he had actual or constructive notice of the defamation, claiming that 

where the defamatory act is “secretive or inherently undiscoverable [due to the] 

nature of the publication” courts have permitted the more relaxed “discovery rule” 

for defamation. Straheli v. Smith, 548 So2d 1299, 1303 (Miss 1989) (adopting the 

“discovery rule” for libel in the limited occasions when the publication is “secretive 

or inherently undiscoverable”). Although it is persuasive, we need not reach this 

limited application of the so-called “discovery rule.” 

[¶30.] Leisinger’s appeal must fail because of the following. In Leisinger’s 

own affidavit he stated: “A Minnehaha deputy sheriff mentioned to me sometime 

during the Summer of 2001 that Jacobson had alleged to law enforcement that I 

assaulted her at her home. I had nothing to do with this I did not assault her.” 

(Emphasis added). By Leisinger’s own admission he knew of the alleged defamation 

in the summer of 2001, yet failed to commence any action until December 11, 2003, 

well over two years after he clearly had actual knowledge of the defamatory 

statements. This Court has stated: 

when a party testifies to positive and definite facts which, if 

true, would defeat his right to recover or conclusively show his 

liability, and such statements are not subsequently modified or 

explained by him so as to show that he was mistaken although 

testifying in good faith, it has generally been held that he is 

conclusively bound by his own testimony, and cannot 

 

6. SDCL 23-5-11 states that information related to ongoing investigation may 

be withheld from the public. SDCL 23A-28B-36 plainly states that 

information provided to the Crime Victims’ Compensation Program is 

confidential. Jacobson’s alleged defamatory statements were made to the 

police and to the Crime Victims’ Compensation Program. 
#24491, #24492, #24498 

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successfully complain if he is nonsuited or the court directs a 

verdict against him. 

Miller v. Stevens, 63 SD 10, 16, 256 NW 152, 155 (1934) (citation omitted). 

Moreover, during oral arguments Leisinger’s attorney conceded that Leisinger had 

constructive knowledge of the alleged defamation on December 10, 2001, over two 

years prior to filing the lawsuit.7 

[¶31.] The defamation claim was untimely and must fail. Leisinger failed to 

bring suit before the tolling of the statute of limitations. 

[¶32.] We reverse and remand Jacobson’s request for attorney fees (#24991) 

and affirm the dismissal of Leisinger’s defamation claim (#24492 & #24498). 

[¶33.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and 

ZINTER, Justices, concur. 

[¶34.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, 

disqualified. 

 

7. Although Leisinger claims his permissive counterclaim relates back to the 

filing of Jacobson’s conversion claim, effectively tolling the statute of 

limitations, this argument is without merit. Only compulsory counterclaims 

benefit from the relation back doctrine. See WRIGHT, MILLER & KANE,

FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1425 at 189-90 (West 1990). 

Indeed, even in the cases cited to this Court by Leisinger, Aramony v. United 

Way of America and MacDonald v. Riggs, permissive counterclaims are not 

permitted to benefit from the relation back doctrine. Aramony v. United Way 

of America, 969 FSupp 226, 231 (SDNY 1997) (stating “counterclaim tolls its 

limitations period at the filing of the initial complaint if it is compulsory, but 

not until the service of the counterclaim if it is permissive”) (citations 

omitted); MacDonald v. Riggs, 166 P3d 12, 18 (Alaska 2007) (stating that the 

counterclaim is compulsory and relates back “if it arises out of the 

transaction or occurrence that is the subject matter of the opposing party’s 

claim”) (citation omitted).