Stratmeyer v. Engberg, 22214.

• Decision Date: 31 July 2002
• Docket Number: No. 22214.,22214.
• Citation: 2002 SD 91,649 N.W.2d 921
• Parties: Frances I. STRATMEYER and Gary J. Stratmeyer, Plaintiffs and Appellees, v. Janice ENGBERG, Defendant and Appellant.
• Court: South Dakota Supreme Court

649 N.W.2d 921

2002 SD 91

Frances I. STRATMEYER and Gary J. Stratmeyer, Plaintiffs and Appellees, v. Janice ENGBERG, Defendant and Appellant.

No. 22214.

Supreme Court of South Dakota.

Considered on Briefs May 28, 2002.

Decided July 31, 2002.

Daniel W. Lias, Sioux Falls, South Dakota, Attorney for plaintiffs and appellees.

William H. Engberg, Pierre, South Dakota, Attorney for defendant and appellant.

PER CURIAM.

[¶ 1.] Janice Engberg appeals from an order which vacated an award of attorney fees under SDCL 15-17-51, which permits an award of attorney fees against a party who brings a frivolous or malicious action. We affirm.

FACTS

[¶ 2.] This appeal involves the Stratmeyer family; Frances, the mother, and her children, Gary, Janice and Richard. Gary Stratmeyer and Frances Stratmeyer (Stratmeyer) are plaintiffs in this action and Janice Engberg and Richard Stratmeyer (Engberg) were defendants.

[¶ 3.] In part, this appeal arises from the facts of Stratmeyer v. Stratmeyer, 1997 SD 97, 567 N.W.2d 220 (Stratmeyer I). In July 1995, the children of Janice and Richard filed suit against Gary seeking damages for sexual abuse suffered when they were children. See id. Three of the plaintiffs, Kathryn, Karla and Richard, were Richard's children. The remaining plaintiff was Janice's son, John. The jury returned verdicts in favor of Richard and John. The jury found and the trial court held that the statute of limitations barred the claims of Kathryn and Karla, who did not appeal that decision. On appeal, this Court affirmed the jury verdicts and judgments. Apparently, the amounts owing under the judgments have not been fully collected and remain unpaid.

[¶ 4.] Prior to the trial in Stratmeyer I, Gary and Frances commenced the action underlying this appeal. They filed suit against Janice and Richard claiming assault and battery and intentional infliction of emotional distress. The complaint, filed March 26, 1996, alleged multiple instances of assault and harassment and asked for compensatory damages to be determined at trial, and punitive damages of $150,000 to each plaintiff from each defendant. [¶ 5.] In the complaint, Stratmeyer alleged that Engberg intentionally knocked Frances down with her car and filed reports with the Department of Social Services alleging abuse of the children by Gary. He alleged that Engberg filed reports with the Minnehaha County law enforcement that Gary was suicidal and homicidal, which caused the police to go to Menards where Gary worked, take him into custody and place him in the "psych ward" at McKennan Hospital for 3 days on an emergency admission. He further alleged that Engberg entered Frances' home and threatened and berated her, denying her use of her telephone, until she was forced to escape and seek the assistance of a friend. He claimed that Engberg made numerous threatening and harassing telephone calls to Frances, jostled and pushed Gary's children in a public restaurant to intimidate and harass Gary and Frances, and continued such harassment and intimidation despite a "protection order" barring her contact with either Gary or Frances.

[¶ 6.] During these proceedings, Richard allegedly set fire to Gary's house. Gary was in the house at the time, but was able to escape. Richard committed suicide shortly thereafter, leaving Janice as the sole defendant in this action.

[¶ 7.] Both sides have been represented by at least three different attorneys throughout this matter. During the involvement of the third attorney representing Stratmeyer, the action was dismissed at Stratmeyer's request on August 18, 2000, the day before the trial would have taken place. By this same order, the trial court ordered that Engberg would recover her taxable costs.

[¶ 8.] On September 15, 2000, Engberg filed an application for costs under SDCL 15-6-54(d) in the amount of $373.07 and, based on a claim that the action was frivolous and/or malicious under SDCL 15-17-51, a request for attorney fees in the amount of $6,271.29. This application was accompanied by an itemized statement. No objection was filed within the ten-day statutory period under SDCL 15-6-54(d), and on October 10, 2000, judgment was entered for costs and attorney fees for the full amount requested.

[¶ 9.] On this same date, Stratmeyer filed an objection to the award, claiming Engberg failed to demonstrate grounds to recover costs and attorney fees. On November 1, Stratmeyer filed a motion to set aside the order based on failure to demonstrate grounds and failure to have a hearing on the issue. The court held a hearing on the motion to set aside and determined that SDCL 15-17-51 and prior caselaw of this Court required it to enter findings regarding the frivolity or maliciousness of the action, which the court had failed to do. The court vacated the attorney fees portion of the award pending a hearing on the issue and entered the award for costs in the amount of $373.07. The amended judgment was filed September 5, 2001.

[¶ 10.] On September 11, Engberg filed a motion to reconsider, noting that under SDCL 15-6-54(d), any objections to an application of costs and disbursements must be filed within 10 days. She argued there was no basis for the court's relieving Stratmeyer of his duty to object within this period and no basis to vacate the award of attorney fees. On September 14, Engberg filed a motion to define the issue, claiming Stratmeyer's request to dismiss his lawsuit was an admission that it was frivolous and that only maliciousness need be addressed at the upcoming hearing.¹ In response, Gary Stratmeyer filed an affidavit setting forth facts supporting his and his mother's claims in filing the lawsuit. Meanwhile, more fees and costs were incurred by Engberg. Engberg, now on her third attorney, filed an application for taxation of costs and attorney fees in the amount of $14,506.40.

[¶ 11.] A hearing was held September 21, 2001. Witnesses involved in the underlying action for assault and IIED testified. The court found the action had not been frivolously or maliciously filed. It denied attorney fees, but awarded costs and those costs incurred to address additional procedures. Engberg appeals, raising four issues, which we have rephrased.²

STANDARD OF REVIEW

[¶ 12.] "We review a trial court's ruling on the allowance or disallowance of costs and attorney fees under an abuse of discretion standard." Eccleston v. State Farm Mut. Auto. Ins. Co., 1998 SD 116, ¶ 20, 587 N.W.2d 580, 583 (citing Fullmer v. State Farm Ins. Co., 498 N.W.2d 357, 363 (S.D.1993)).

[¶ 13.] 1. WHETHER THERE IS SUCH A DEFICIENCY IN FACT OR LAW UNDER THIS RECORD THAT STRATMEYER'S CLAIMS MUST BE FRIVOLOUS UNDER SDCL 15-17-51.

[¶ 14.] SDCL 15-17-51 provides:

If a civil action or special proceeding is dismissed and if the court determines that it was frivolous or brought for malicious purposes, the court shall order the party whose cause of action or defense was dismissed to pay part or all expenses incurred by the person defending the matter, including reasonable attorneys' fees.

In a recent opinion interpreting this statute, this Court stated:

A frivolous action exists when "the proponent can present no rational argument based on the evidence or law in support of the claim...." To fall to the level of frivolousness there must be such a deficiency in fact or law that no reasonable person could expect a favorable judicial ruling. Simply because a claim or defense is adjudged to be without merit does not mean that it is frivolous. Instead, frivolousness "connotes an improper motive or a legal position so wholly without merit as to be ridiculous."

Ridley v. Lawrence County Comm'n, 2000 SD 143, ¶ 14, 619 N.W.2d 254, 259 (internal citations omitted).

[¶ 15.] Stratmeyer sued on claims of civil assault and battery and intentional infliction of emotional distress. The claim of civil assault and battery can be proved if the defendant: "(a) [intended] to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact; and, (b) an offensive contact with the person of the other directly or indirectly results. Restatement (Second) of Torts § 18." Reeves v. Reiman, 523 N.W.2d 78, 82 (S.D.1994). "[T]he victim need not show a specific intent or design to cause the contact or to cause any singular and intended harm. What is forbidden is the intent to bring about the result which invades another's interests in a manner that the law forbids." Id. (citing Frey v. Kouf, 484 N.W.2d 864, 867 (S.D. 1992)).

[¶ 16.] The claim of intentional infliction of emotional distress requires the following elements: "(1) extreme and outrageous conduct by the defendant; (2) that the defendant intended to cause severe emotional distress; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress must result." Christians v. Christians, 2001 SD 142, ¶ 23, 637 N.W.2d 377, 382 (citing French v. Dell Rapids Community Hospital, Inc., 432 N.W.2d 285, 289 (S.D.1988) (citation omitted)).

[¶ 17.] The trial court found Stratmeyer's lawsuit was not frivolous. A rational argument for assault and IIED can be made based upon the facts alleged in the complaint and supported by testimony at the September 21, 2001 hearing. Whether Stratmeyer could have proven his claims is not the test when determining whether the action was frivolous. Ridley, 2000 SD 143 at ¶¶ 14-15, 619 N.W.2d at 259. Abandonment of his case is not the sole factor in the determination. Id. Engberg claims the court erred because she denies Stratmeyer's claims and because no medical damages were shown. "Simply because a claim or defense is adjudged to be without merit does not mean that it is frivolous." Id. at ¶ 14 (citation omitted).

[¶ 18.] The court's decision to deny a motion for attorney fees is reviewed under an abuse of discretion standard. Fullmer, 498 N.W.2d at 363 (citation omitted)....