## Facts

- Rita Fix lived for decades in a home in Faulk County, South Dakota.
- In 1997, Fix and her husband entered a contract for deed conveying the property to their son and daughter-in-law (Jeff and Marie Fix) while reserving Fix’s right to remain in the home during her life.
- In 1999, Jeff and Marie sought additional financing from First State Bank of Roscoe and an affiliated entity (collectively, the Bank); the Bank required a warranty deed, which would eliminate Fix’s reserved interest.
- To induce Fix to convey, the Bank’s president sent a letter stating that if the Bank became the owner of the property, Fix would have the right to possess the home for as long as she lived.
- After Jeff and Marie encountered financial problems, the Bank acquired the property, later transferred it to third parties, and sought Fix’s removal from the home.
- Fix sued the Bank, asserting (among other claims) intentional infliction of emotional distress (IIED) and abuse of process.
- During the civil dispute, Fix and others were criminally charged in connection with dealings involving the Bank; the same State’s Attorney prosecuted the criminal case and represented the Bank in the civil case.
- Fix alleged the State’s Attorney offered to dismiss criminal charges against her if she deeded the house back to the Bank, and she added an abuse-of-process claim based on that alleged misuse of criminal process for a civil objective.
- The trial court dismissed Fix’s IIED claim on summary judgment; a jury found the Bank liable for abuse of process but awarded zero damages.

## Issues

1. Whether summary judgment dismissing Fix’s IIED claim was proper because the alleged conduct failed to meet South Dakota’s “extreme and outrageous” requirement.
2. Whether the abuse-of-process damages instructions erroneously required an IIED-type showing (including severe distress and/or physical manifestation), thereby limiting recovery for emotional distress.

## Decision

- Affirmed summary judgment dismissing the IIED claim.
- Reversed the judgment on the abuse-of-process claim due to erroneous damages instructions.
- Remanded for a new trial on abuse of process with correct instructions permitting emotional distress damages under the proper standard.

## Legal Principles

- IIED requires proof of (1) extreme and outrageous conduct, (2) intent or reckless disregard of causing distress, (3) severe emotional distress, and (4) causation; the “extreme and outrageous” threshold is demanding and reserved for egregious conduct.
- Abuse of process requires (1) an ulterior purpose and (2) a willful act in the use of process not proper in the regular conduct of the proceeding.
- In an abuse-of-process action, emotional distress damages are recoverable if proximately caused and supported by evidence; a plaintiff need not satisfy IIED-level severity requirements or prove physical manifestation of distress.
- Jury instructions that import the heightened IIED emotional-distress standard into abuse-of-process damages improperly restrict recovery and can warrant a new trial if prejudicial.

## Conclusion

The court upheld dismissal of IIED because the alleged conduct did not qualify as extreme and outrageous, but ordered a new trial on abuse of process because the jury was incorrectly instructed to apply an IIED-like threshold for emotional distress damages.


Fix v. First State Bank of Roscoe, 807 N.W.2d 612 (S.D. 2011)