#26784-a-GAS

2014 S.D. 93

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

CURTIS HUETHER, Plaintiff and Appellant,

v.

MIHM TRANSPORTATION CO.,

PAUL RADLOFF, and ROD SPARTZ, Defendants and Appellees,

and

DAVID BISSON, and JEFF DIETRICH, Defendants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

HUTCHINSON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICK SMITH

Judge

* * * *

SCOTT R. SWIER

BROOKE SWIER SCHLOSS

Swier Law Firm, Prof. LLC

Avon, South Dakota Attorneys for plaintiff

and appellant.

SABRINA L. SAYLER

Crary, Huff, Ringgenberg, Hartnett

 & Storm, PC

Dakota Dunes, South Dakota Attorneys for defendants and

appellees Mihm and Paul 

Radloff.

SCOT D. MANNSCHRECK

Vermillion, South Dakota Attorney for defendant and 

appellee Rod Spartz.

* * * *

CONSIDERED ON BRIEFS ON 

NOVEMBER 17, 2014

OPINION FILED 12/23/14
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SEVERSON, Justice

[¶1.] Curtis Huether brought this action alleging fraudulent 

misrepresentation and deceit and civil conspiracy against David Bisson, Mihm 

Transportation Co. (Mihm), Paul Radloff, Rod Spartz, and Jeff Dietrich (collectively 

Defendants). Bisson did not defend the lawsuit, and as a result, the circuit court 

entered a default summary judgment against him for fraudulent misrepresentation 

and deceit in the amount of $100,004 in actual damages and $1,000,000 in punitive 

damages. A jury trial was held on the remaining claims against Defendants. The 

jury found in favor of Huether on the civil conspiracy claim as to Mihm and Radloff. 

The jury awarded Huether $1,891 against Mihm and $500 against Radloff, and the 

circuit court imposed joint and several liability for the total jury award ($2,391) 

against Mihm and Radloff. Huether appeals asserting that the circuit court erred 

in failing to impose upon Bisson, Mihm, and Radloff joint and several liability for 

the totality of the summary judgment award, including punitive damages, and in

denying his motion for judgment as a matter of law against Spartz. We affirm.

Facts and Procedural History

[¶2.] In September 2008, Bisson contacted Huether with a proposed deal 

wherein Huether would purchase 70 “open” (i.e., non-pregnant) heifers from Bisson 

at $1,425 per head (totaling $99,750), Huether would breed the open heifers, and 

then Bisson would purchase the “springing” (i.e., impregnated) heifers from 

Huether at $2,000 per head (totaling $140,000). Huether and Bisson had entered a 

written agreement in the past, and the two proceeded under an understanding 

similar to the terms of the prior agreement. Although Bisson promised a written 
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contract, none was provided or entered into. Bisson hired Mihm to transport the 

heifers from Indiana to Huether’s farm in Hutchinson County, South Dakota. 

Mihm contracted with Radloff to transport the heifers and sent load information to 

Radloff. Radloff transported the heifers to Huether and, upon arrival to Huether’s 

farm on September 9, 2008, Radloff gave Huether the heifers’ health certificates 

and the transportation bill, which totaled $2,391. Huether did not review the 

health certificates at that time.

[¶3.] Bisson called Huether a few days after the heifers arrived and 

arranged for Bisson and Bisson’s veterinarian, Jeff Dietrich, to dehorn some of the 

heifers and further “work” the heifers on September 24, 2008, even though Huether 

would not be at his farm that day. Bisson assured Huether that he did not need to 

be present. Huether alleged at trial that Bisson and Dietrich altered the heifers’ 

identification tags that day so that the heifers would appear to originate from South 

Dakota.

[¶4.] In January of 2009, some of the heifers began calving early.1 As a 

result, Huether called a local veterinarian to examine the heifers in March of 2009, 

and the veterinarian ascertained that some of the supposedly open heifers were 

actually pregnant when Radloff delivered them in September of 2008. In addition, 

the veterinarian or the veterinarian’s assistant noticed that the heifers’

identification tags appeared to have been altered or removed. Huether then 

examined the health certificates that accompanied the heifers when they were 

delivered by Radloff. Huether’s examination revealed that the heifers’ state of 

 

1. The normal gestation period for a heifer is about nine months.
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origin, ages, identification information, cosignor and cosignee information, and

interstate movements appeared to be falsified or altered.

[¶5.] Huether alerted the South Dakota State Veterinarian and the United 

States Department of Agriculture, both of which began investigating. The State 

investigator, Dr. Mendel Miller, found that the heifers’ identifications and health 

certificates were incorrect, the heifers’ medical information could not be verified,

and the heifers’ origin could not be determined. As a result, the State quarantined 

the heifers until they were tested for tuberculosis. The heifers could not be sold or 

moved while in quarantine. Huether could have had the heifers tested for 

tuberculosis shortly after the quarantine began, but chose not to do so until more 

information could be gathered about the heifers’ origin.

[¶6.] On June 1, 2009, while the heifers were under quarantine, Huether’s 

attorney received a letter from Mihm and Radloff. The letter stated that the heifers 

actually came from Spartz’s farm in Goodwin, South Dakota. Later that same day,

when Huether and his attorney called Mihm about the letter, Mihm, and later 

Radloff, admitted the letter was a lie. Mihm claimed that Bisson had told him what 

to write. Mihm also claimed that the heifers were from Indiana, so within a matter 

of hours, Mihm gave two different accounts of the heifers’ origin. Radloff asserted 

that he did not know that Bisson had directed Mihm to write the letter, but Mihm 

and Radloff admitted they knew the letter was false when it was sent.

[¶7.] Having failed to ascertain the origin of the heifers from Mihm or 

Radloff, Huether and Dr. Miller followed up on a possible lead in Spartz. Spartz 

was a grain and beef farmer and had a long-standing business relationship with 
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Bisson. Spartz, too, lied about the origin of the heifers, claiming the heifers had 

indeed come from his farm. Huether believed that Bisson directed Spartz to lie 

about the origin of the heifers as part of the ongoing fraud against Huether. At 

trial, Spartz admitted that he lied at Bisson’s request.

[¶8.] On or about October 29, 2009, Huether finally had the heifers tested 

for tuberculosis; they tested negative. The State then lifted the quarantine. The 

heifers were quarantined for approximately five months from March to October. 

Huether sold the heifers for about $932 per head, and he alleged that he suffered 

$100,004 in damages. The heifers were sold at approximately the same time that 

they would have been sold to Bisson under the original contract.

[¶9.] Huether filed suit against Defendants in August of 2010, alleging, 

inter alia, fraudulent misrepresentation and deceit and civil conspiracy. Huether 

prayed for actual and punitive damages. Huether’s claim for $100,004 was 

determined primarily by the difference between the claimed contract price of $2,000 

per head and the price for which he eventually sold the heifers, $932 per head. 

Trial testimony established that the market value of the heifers declined from the 

time when Huether and Bisson settled on the contract price to when Huether sold 

the heifers. Huether moved for summary judgment against Bisson regarding the 

fraudulent misrepresentation and deceit claim, and the circuit court held a hearing 

on April 25, 2013. Bisson did not appear or resist the claim.2 The other Defendants

filed resistances to the motion for summary judgment by Huether against Bisson 

 

2. Huether properly served Bisson with the lawsuit, all motions, and all other 

actions throughout the pendency of the case.
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because of the possibility of joint and several liability, but the circuit court ruled 

that the co-defendants could not intervene. The circuit court entered default

summary judgment against Bisson for $100,004 in actual damages and $1,000,000 

in punitive damages. The circuit court instructed all parties that the summary 

judgment applied only to Bisson and that any underlying torts for the civil 

conspiracy claim needed to be established at trial. Although not required by 

statute, the court entered findings of fact and conclusions of law against Bisson, but 

none of those findings or conclusions related to the civil conspiracy claim.

[¶10.] Huether proceeded to trial against the remaining Defendants. The 

circuit court again clarified that the default summary judgment only applied to 

Bisson and only pertained to Huether’s fraudulent misrepresentation and deceit 

claim against Bisson, not the civil conspiracy claim. At trial Dr. Miller testified that 

what happened with Huether’s heifers was “quite in depth and quite complicated, 

[with] a lot of deception and dishonesty.” The State of South Dakota’s Chief 

Veterinarian testified that “it’s one of the most confusing movements of livestock” 

that he had ever seen. Mihm described its participation in the letter as a “lie,” a 

“mistake,” and an “error in judgment.” Radloff stated that it was “the biggest 

mistake I think I have ever made.” Spartz thought that lying to Huether was “no 

big deal,” he did not think anything of it, and he did not care what happened.

[¶11.] At the close of plaintiff’s presentation of the evidence, the circuit court 

denied both Huether’s and Defendants’ motions for judgment as a matter of law. At 

the close of the parties’ presentation of the evidence, the court again denied 

Huether’s and Defendants’ renewed motions for judgment as a matter of law 
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because the court believed there were issues of fact that needed to be decided by the 

jury. The parties then submitted jury instructions and special interrogatories to the 

court, and the court reviewed those instructions and interrogatories with the 

parties’ attorneys. The circuit court instructed the jury that the court had 

previously found that Bisson committed fraudulent misrepresentation and deceit 

against Huether and that it had already awarded Huether $100,004 in actual 

damages and additional punitive damages. The circuit court further instructed the 

jury that Huether bore the burden of proving that two or more of the Defendants

conspired to commit fraud and deceit against Huether. The court properly 

instructed the jury on the elements of civil conspiracy and fraudulent 

misrepresentation and deceit. Defendants requested special interrogatories as to 

whether Mihm, Radloff, Spartz, and Dietrich were individually liable to Huether for 

fraudulent misrepresentation and deceit. The jury found that none of the 

aforementioned Defendants were individually liable to Huether for fraud and deceit. 

The circuit court also submitted to the jury a special interrogatory on Huether’s 

civil conspiracy claim for each of the Defendants except Bisson. The jury held Mihm 

liable to Huether on the basis of civil conspiracy in the amount of $1,891 and 

Radloff liable to Huether on the basis of civil conspiracy for $500. These amounts 

totaled what the evidence had established as the transportation bill for the heifers

paid by Huether to Mihm and Radloff (i.e., $2,391). The jury did not hold any of the 

other Defendants liable to Huether on the basis of civil conspiracy. 

[¶12.] After the jury entered its verdict, the parties submitted proposed 

judgments to the circuit court. Huether’s proposed judgment held Bisson, Mihm, 
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and Radloff jointly and severally liable for $1,100,004. The circuit court ruled that 

Bisson, Mihm, and Radloff were not jointly and severally liable for $1,100,004 

because it was not established at trial or on summary judgment that Bisson was a 

member of the civil conspiracy with Mihm and Radloff. Further, it was not 

established that Bisson’s fraudulent misrepresentation or deceit was the underlying 

tort for the civil conspiracy claim. The circuit court explained in its memorandum 

opinion that the underlying tort for the civil conspiracy claim was not determined 

and that it could have been something other than Bisson’s fraudulent 

misrepresentation and deceit. The jury did not award punitive damages to Huether 

against any of the Defendants. The circuit court upheld the jury verdict, and 

Huether now appeals to this Court.

[¶13.] Huether raises three issues on appeal:

1. Whether the circuit court erred by not holding Bisson, 

Mihm, and Radloff jointly and severally liable for the 

actual damages awarded to Huether in the default 

summary judgment against Bisson.

2. Whether the circuit court erred by not holding Bisson, 

Mihm, and Radloff jointly and severally liable for the 

punitive damages awarded to Huether in summary 

judgment against Bisson.

3. Whether the circuit court erred in denying Huether’s 

motion for judgment as a matter of law against Spartz.

Standard of Review

[¶14.] Huether contends that the circuit court erred in applying the law of 

civil conspiracy and joint and several liability to the facts of the case. This 

constitutes a mixed question of law and fact. See In re Dorsey & Whitney Trust Co., 

2001 S.D. 35, ¶ 6, 623 N.W.2d 468, 471 (stating a mixed question of law and fact 
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includes one in which “the historical facts are admitted or established, the rule of 

law is undisputed, and the issue is whether . . . the rule of law as applied to the 

established facts is or is not favorably satisfied[]” (quoting Permann v. S.D. Dep’t of 

Labor, 411 N.W.2d 113, 118 (S.D. 1987) (internal quotation marks omitted)). In 

determining the standard of review for a mixed question of law and fact, the Court 

considers the nature of the inquiry. Stockwell v. Stockwell, 2010 S.D. 79, ¶ 16, 790 

N.W.2d 52, 59. We stated in Stockwell:

If application of the rule of law to the facts requires an inquiry 

that is ‘essentially factual’—one that is founded ‘on the 

application of the fact-finding tribunal’s experience with the 

mainsprings of human conduct’—the concerns of judicial 

administration will favor the [circuit] court, and the [circuit] 

court’s determination should be classified as one of fact 

reviewable under the clearly erroneous standard. If, on the 

other hand, the question requires us to consider legal concepts 

in the mix of fact and law and to exercise judgment about the 

values that animate legal principles, then the concerns of 

judicial administration will favor the appellate court, and the 

question should be classified as one of law and reviewed de novo.

Id. (quoting Darling v. W. River Masonry, Inc., 2010 S.D. 4, ¶ 10, 777 N.W.2d 363, 

366). To the extent that Huether asks us to examine the application of a legal 

doctrine to established facts, we review the application of the law under the de novo 

standard of review. See id.; Hanson v. Vermillion Sch. Dist. No. 13-1, 2007 S.D. 9, ¶ 

24, 727 N.W.2d 459, 467. Factual issues are reviewed under the clearly erroneous 

standard. Vander Heide v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 17, 736 N.W.2d 824, 

831 (citing City of Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 9, 607 N.W.2d 22, 25).
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[¶15.] However, Appellees point out that Huether also challenges whether 

certain facts were found by the jury.3 “When reviewing the sufficiency of the 

evidence, we accept all evidence favorable to the verdict, and reasonable inferences 

therefrom, without weighing credibility or resolving conflicts.” Fritzmeier v. Krause 

Gentle Corp., 2003 S.D. 112, ¶ 9, 669 N.W.2d 699, 702 (quoting Maryott v. First 

Nat’l Bank of Eden, 2001 S.D. 43, ¶ 21, 624 N.W.2d 96, 104). “If there is evidence if 

believed by the fact finder that supports the jury’s verdict, then we will affirm.” Id.

[¶16.] Finally, we review Huether’s claim that the circuit court erred in 

denying his motion and renewed motion for judgment as a matter of law against 

Spartz under the abuse of discretion standard. Bertelsen v. Allstate Ins. Co., 2013 

S.D. 44, ¶ 16, 833 N.W.2d 545, 554 (citing Jacobs v. Dakota, Minn. & E. R.R. Corp., 

2011 S.D. 68, ¶ 9, 806 N.W.2d 209, 212). This Court’s review of motions and 

renewed motions for judgment as a matter of law is well-established. 

We view the evidence and testimony in a light most favorable to 

the verdict[ and, t]hen, without weighing the evidence, the Court 

must decide if there is evidence which would have supported or 

did support a verdict. If sufficient evidence exists so that 

reasonable minds could differ, judgment as a matter of law is 

not appropriate. In resolving sufficiency of evidence issues on 

appeal, this Court should examine the record to determine only 

if there is competent and substantial evidence to support the 

verdict. 

Id. (citations omitted) (internal quotation marks omitted).

Analysis and Decision

 

3. Appellees argue that Huether’s claim rests on two factual inquiries: (1) Did 

the jury find that Bisson, Mihm, and Radloff were members of a civil 

conspiracy? and (2) Did the jury find that Bisson’s fraudulent 

misrepresentation and deceit was the underlying tort of the civil conspiracy 

that would allow the circuit court to impose joint and several liability?
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[¶17.] 1. Whether the circuit court erred by not holding Bisson, Mihm, and 

Radloff jointly and severally liable for the actual damages 

awarded to Huether in default summary judgment against 

Bisson.

[¶18.] Huether argues that the circuit court committed clear legal error when 

it did not hold Bisson, Mihm, and Radloff jointly and severally liable under the 

doctrine of civil conspiracy. Huether correctly points out that civil conspiracy is not 

an independent cause of action, but rather a means of imposing vicarious liability. 

Selle v. Tozser, 2010 S.D. 64, ¶ 25, 786 N.W.2d 748, 756 (citing Beck v. Prupis, 529 

U.S. 494, 503, 120 S. Ct. 1608, 1615, 146 L. Ed. 2d 561 (2000)). In order to establish 

a prima facie case of civil conspiracy, the plaintiff must prove: “(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.” In re

Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1498 

(8th Cir. 1997). Further, “[c]ivil conspiracy is not an independent cause of action, 

but is sustainable only after an underlying tort claim has been established.” Selle, 

2010 S.D. 64, ¶ 25, 786 N.W.2d at 756 (quoting Kirlin v. Halverson, 2008 S.D. 107, ¶ 

59, 758 N.W.2d 436, 455) (internal quotation marks omitted). “The purpose of a 

civil conspiracy claim is to impose civil liability for damages on those who agree to 

join in a tortfeasor’s conduct and, thereby, become liable for the ensuing damage, 

simply by virtue of their agreement to engage in the wrongdoing.” Id. (quoting 

Macomber v. Travelers Prop. & Cas. Corp., 894 A.2d 240, 254-55 (Conn. 2006)).

[¶19.] Huether’s primary contention is that the circuit court erred when it 

failed to impose joint and several liability as to Bisson, Mihm, and Radloff for the 
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civil conspiracy claim. He asserts that the circuit court found as a matter of law 

that Bisson committed fraudulent misrepresentation and deceit against Huether, 

which is correct. The circuit court found Bisson committed fraudulent 

misrepresentation and deceit against Huether in an unopposed summary judgment

hearing. However, Huether also insists that the circuit court found that Bisson’s 

fraudulent misrepresentation and deceit was the “underlying tort claim” for the civil

conspiracy. Huether further contends that Bisson’s ongoing fraud was the only 

possible underlying tort that could give rise to the civil conspiracy. Finally, Huether 

asserts that “the jury found that Mihm and Radloff committed civil conspiracy by 

joining Bisson’s tortious conduct.” We disagree.

[¶20.] The jury did not find, and was not asked to find: (1) what the 

underlying tort claim was with regards to the civil conspiracy; (2) whether Bisson

was a co-conspirator in the civil conspiracy; (3) whether Bisson’s fraudulent 

misrepresentation and deceit was the underlying tort for the civil conspiracy; and 

(4) whether the damages (including the summary judgment damages) of the civil 

conspiracy flowed from Bisson’s conduct or other conduct. There was no jury 

instruction or special interrogatory asking or telling the jury to find any of the 

aforementioned facts. In essence, nothing in the jury’s verdict linked Bisson, his 

tortious conduct, or any proximately resulting damages to the civil conspiracy of 

Mihm and Radloff. The jury specifically found that Mihm and Radloff conspired 

against Huether and were liable to Huether for $1,891 and $500 respectively. The 

circuit court correctly notes in its memorandum opinion that the jury could have 
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found the underlying tort to be something other than Bisson’s fraudulent 

misrepresentation and deceit.4

[¶21.] It is the parties’ duty to request jury instructions and special 

interrogatories for their theory of the case. City of Sioux Falls v. Kelley, 513 N.W.2d 

97, 108 (S.D. 1994) (citing Glanzer v. St. Joseph Indian Sch., 438 N.W.2d 204 (S.D. 

1989)). “The failure of a court to correctly or fully instruct the jury is not reviewable 

unless an objection or exception to the instruction identifying the defect therein 

with sufficient particularity was taken or a written instruction correctly stating the 

law was requested.” Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 757 

(S.D. 1994) (quoting Wells v. Billars, 391 N.W.2d 668, 670 (S.D. 1986)). Under

SDCL 15-6-51(a)-(c), the circuit court must give the parties the opportunity to 

request jury instructions, inform the parties about the jury instructions that have 

been requested, and give the parties the opportunity to object to the court’s

proposed jury instructions before they are settled. The circuit court provided the 

parties with such opportunities. Huether objected to the form and content of some 

of those jury instructions. “A party who objects to an instruction or the failure to 

give an instruction must do so on the record, stating distinctly the matter objected to 

 

4. The circuit court noted in its memorandum opinion:

As the jury made no determination as to what the underlying 

tort was, the court is not going to assume what it is. That said, 

the court does consider the fact that the jury awarded the exact 

amount of Huether’s shipping bill [(i.e., $2,391)] . . . as damages. 

Evidence was presented at trial that suggested Mihm and Radloff conspired 

against Huether to inflate the shipping costs of the heifers. Thus, the jury 

could have found that the underlying tort for the civil conspiracy claim was 

something other than Bisson’s conduct.
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and the grounds of the objection.” SDCL 15-6-51(c)(1) (emphasis added); see also 

Duda v. Phatty McGees, Inc., 2008 S.D. 115, ¶ 27, 758 N.W.2d 754, 762 (“An 

attorney must be clear when objecting to jury instructions ‘so the trial court is 

advised of what possible errors exist and be granted the opportunity to correct any 

instructions.’” (quoting Parker v. Casa Del Rey-Rapid City, Inc., 2002 S.D. 29, ¶ 15, 

641 N.W.2d 112, 118) (internal quotation marks omitted)). “The complaining party 

must have properly objected to the instruction in order to preserve the issue on 

appeal, or the improper instruction becomes the law of the case.” Knudson v. Hess, 

1996 S.D. 137, ¶ 11, 556 N.W.2d 73, 77 (quoting Wallahan v. Black Hills Elec. 

Coop., 523 N.W.2d 417, 419-20 (S.D. 1994)).

[¶22.] Huether objected to the form of the special interrogatories, but his 

objections were insufficient and non-specific to the problem he now faces on appeal. 

In fact, in ruling on Huether’s objection to special interrogatory no. 4, the circuit 

court specifically addressed the problem he now faces on appeal. The court stated:

The [c]ourt has not found as a matter of law that [Bisson’s] 

fraud and deceit which was the basis of the underlying tort of 

any conspiracy between Mr. Bisson and the defendants, and I 

would hold you to your responsibility to establish that 

underlying tort in this trial. 

If that underlying tort is established, then there would be—then 

the civil conspiracy claim will survive and damages can be 

awarded as an element of civil conspiracy. It is required that 

damages be proven as they connect to the underlying tort.

The circuit court gave Huether the opportunity to request a specific jury instruction 

or special interrogatory to ascertain Bisson’s participation in the civil conspiracy or 

whether his fraud and deceit was the underlying tort. Huether failed to request
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such an instruction or interrogatory. Therefore, Huether waived the issue on 

appeal.

[¶23.] Huether’s failure to request jury instructions or special interrogatories

does not necessarily mean the jury instructions were legally insufficient. Jury 

instructions “must be considered as a whole” and must “correctly state the 

applicable law.” Dunes Hospitality, L.L.C. v. Country Kitchen Int’l, Inc., 2001 S.D. 

36, ¶ 7, 623 N.W.2d 484, 487-88 (quoting Isaac, 522 N.W.2d at 759). We afford the 

jury’s verdict a presumption of validity. See State v. Moschell, 2004 S.D. 35, ¶ 40, 

677 N.W.2d 551, 564 (“We will set aside a jury verdict only when the evidence and 

the reasonable inferences from it fail to sustain any rational theory [supporting the 

verdict].”).

[¶24.] In this case, the jury was properly instructed on the law of fraudulent 

misrepresentation and deceit and the elements of civil conspiracy. The jury’s 

verdict reflects that the jury found an underlying tort, Mihm and Radloff conspired 

together to commit that tort, and Huether suffered a total of $2,391 in actual 

damages as a result. We will not substitute our judgment for that of the jury. City 

of Bridgewater v. Morris, Inc., 1999 S.D. 64, ¶ 5, 594 N.W.2d 712, 715 (citing 

Westover v. East River Elec. Power, 488 N.W.2d 892, 896 (S.D. 1992)). The circuit 

court had the parties submit requested judgments in accordance with the jury’s 

verdict. The circuit court ruled that the link between Bisson and the remaining 

Defendants was not established, and the jury’s verdict was not deficient. We 

conclude that the circuit court properly instructed the jury and did not misapply the 

law in this case. We further conclude that the circuit court correctly held Mihm and 
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Radloff jointly and severally liable on the $2,391 in actual damages as found by the 

jury. 

[¶25.] 2. Whether the circuit court erred by not holding Bisson, Mihm, and 

Radloff jointly and severally liable for the punitive damages 

awarded to Huether in summary judgment against Bisson.

[¶26.] Huether next contends that the circuit court erred in not holding 

Bisson, Mihm, and Radloff jointly and severally liable on the $1,000,000 punitive 

damage award that arose from the summary judgment proceeding against Bisson. 

Issue 2 follows the same trajectory as issue 1. The jury did not find, and was not 

asked or instructed to find, whether Bisson’s tortious conduct was the underlying 

tort for the civil conspiracy claim. In addition, the jury did not find that Bisson was 

a member of the civil conspiracy. The onus to request jury instructions reflecting 

Huether’s theory of the case fell on Huether, Kelley, 513 N.W.2d at 108, and he 

failed to request such instructions. Therefore, we affirm the circuit court’s ruling 

refusing to impose joint and several liability on the punitive damages award.

[¶27.] 3. Whether the circuit court erred in denying Huether’s motion for 

judgment as a matter of law against Spartz.

[¶28.] At the close of Huether’s presentation of the evidence, and again before 

settling jury instructions, Huether moved for judgment as a matter of law against 

Defendants, including Spartz. The circuit court rejected Huether’s motion, 

explaining there were factual issues that the jury needed to decide. Huether argues 

that the circuit court erred because there were no factual issues in dispute, and 

Huether proved every element of civil conspiracy against Spartz.

[¶29.] Judgment as a matter of law is proper when “there is no legally 

sufficient evidentiary basis for a reasonable jury to find for that party on that 
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issue[.]” SDCL 15-6-50(a)(1). As stated above, to make out a prima facie case for 

civil conspiracy, the plaintiff must prove: “(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.” In re TMJ Implants, 113 F.3d at 1498. 

Spartz had a long-standing business relationship with Bisson. Spartz admitted at 

trial that he lied to Huether and the State’s investigator at Bisson’s request. Spartz

lied about the origin of the heifers and thought the lies were “no big thing.” He 

testified that Bisson did not tell him why he should lie or to whom he should lie to. 

Spartz further testified that Bisson did not tell him what the objective was for the 

lie. Bisson did not tell Spartz about Huether, the State investigator, or anything 

about the quarantine. By Spartz’s own testimony, he admitted (1) there were two 

or more people (Spartz and Bisson) and (4) the commission of an unlawful act (lying 

about the origin of the cattle). However, the circuit court felt that there were 

factual questions as to the object to be accomplished, whether there was a meeting 

of the minds on the object or course of action to be taken, and whether damages 

were a proximate result. “[T]he question is not whether this Court would have 

made the same findings the circuit court did, but whether on the entire evidence, 

we are left with a definite and firm conviction that a mistake has been committed.” 

Hubbard v. City of Pierre, 2010 S.D. 55, ¶ 26, 784 N.W.2d 499, 511 (quoting 

Wangsness v. Builders Cashway, Inc., 2010 S.D. 14, ¶ 9, 779 N.W.2d 136, 140 

(internal quotation marks omitted)).
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[¶30.] Spartz argues that based on his testimony, a reasonable jury could find 

that he did not have the requisite knowledge and intent required to be held liable to 

Huether on the civil conspiracy claim. Spartz asserts that admitting to a lie is not 

enough to hold him liable for civil conspiracy. Indeed, the jury found that Spartz 

was not part of a civil conspiracy against Huether. “We view the evidence in the 

light most favorable to the verdict.” Bertelsen, 2013 S.D. 44, ¶ 16, 833 N.W.2d at 

554 (quoting Jacobs, 2011 S.D. 68, ¶ 9, 806 N.W.2d at 212) (internal quotation 

marks omitted). “[T]his Court will not usurp the jury’s function in resolving 

conflicts in the evidence, weighing credibility, and sorting out the truth.” State v. 

Dowty, 2013 S.D. 72, ¶ 15, 838 N.W.2d 820, 825 (quoting State v. Swan, 2008 S.D. 

58, ¶ 9, 753 N.W.2d 418, 420) (internal quotation marks omitted). Based on our 

review, we cannot firmly say that the circuit court abused its discretion in denying 

Huether’s motion for judgment as a matter of law against Spartz. There were 

underlying factual questions concerning the elements of Huether’s civil conspiracy 

claim that the jury needed to address, especially with regards to “(2) an object to be 

accomplished; (3) a meeting of the minds on the object or course of action to be 

taken; . . . and (5) damages as the proximate result of the conspiracy.” In re TMJ 

Implants, 113 F.3d at 1498. Therefore, we affirm the circuit court’s denial and 

uphold the jury’s verdict.

[¶31.] We affirm.

[¶32.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

WILBUR, Justices, concur.