White v. Bain

• Decision Date: 18 June 2008
• Docket Number: No. 24698-A.,24698-A.
• Citation: 2008 SD 52,752 N.W.2d 203
• Parties: Kathleen S. WHITE and Allen L. White, Petitioners and Appellees, v. Nancy BAIN, Respondent and Appellant.
• Court: South Dakota Supreme Court

752 N.W.2d 203

2008 SD 52

Kathleen S. WHITE and Allen L. White, Petitioners and Appellees, v. Nancy BAIN, Respondent and Appellant.

No. 24698-A.

Supreme Court of South Dakota.

Considered on Briefs on April 21, 2008.

Decided June 18, 2008.

Daniel J. Brown of Lammers, Kleibacker & Brown, LLP, Madison, South Dakota, Attorneys for petitioners and appellees.

Kenneth M. Tschetter of Tschetter Law Office, PC, Sioux Falls, South Dakota, Attorney for respondent and appellant.

PER CURIAM.

[¶ 1.] Nancy Bain appeals from a protection order restraining her contact with Allen and Kathleen White (the Whites). We affirm.

FACTS

[¶ 2.] Bain and the Whites owned neighboring cabins on the shore of Lake Madison.¹ The parties were one-time friends who entered into an informal agreement for the construction of garages on their neighboring properties that would be connected by a common deck. Bain was a contractor and, although she was not hired by the Whites, was heavily involved in the construction of both garages and the connecting deck. Disagreements eventually arose between the parties over responsibility for certain items of labor and costs related to the garage construction. There were additional disagreements over use of the common deck and Bain's storage of some of her property in the Whites' garage.

[¶ 3.] In late 2006 and early 2007, Bain began sending the Whites a series of bellicose letters demanding payment of certain costs and labor expenses related to the garage construction and accusing the Whites of manipulation, cheating, lying, laziness and theft. When Bain's letters failed to obtain payment, she began making phone calls to the Whites making similar demands and accusations. After one such phone call in early 2007, the Whites filed a petition for a protection order against Bain. A hearing on the petition was held on April 2, 2007. The trial court denied the petition but reprimanded Bain for her inappropriate letters and phone calls, orally instructed her to cease her behavior and further advised the parties to resolve their differences or they would be back in court again.

[¶ 4.] On August 14, 2007, Mrs. White was in her cabin when she saw Bain approach the residence without invitation and walk across the yard to an open sliding glass door in the kitchen. As Mrs. White tried to shut the door, Bain resisted, forced her way into the premises and demanded the return of some kitchen chairs she had once loaned the Whites. Mrs. White approached Bain and Bain pushed her out of the way with her hands, grabbed one of the kitchen chairs and then used it to again push Mrs. White away. At that point, Mr. White entered the kitchen, repeatedly told Bain to leave and backed her out of the cabin through the open glass door and over onto her own property.² Authorities were then summoned and all of the parties were questioned by law enforcement about the incident.

[¶ 5.] The Whites were distraught over their confrontation with Bain and Mrs. White also visited a physician about pain in her shoulder and neck that she attributed to Bain having pushed her. On August 27, 2007, the Whites filed another petition for a protection order against Bain. A hearing was held on October 1, 2007. After the hearing, the trial court entered a protection order effective until September 2010 prohibiting Bain from coming within five feet of the Whites and further prohibiting her from any form of contact with them. The order also required Bain to turn over all of her weapons and ammunition to the local sheriff and specifically directed her not to speak to the Whites or to enter onto their property at the cabin. Bain appeals.

ISSUE ONE

[¶ 6.] Did the trial court err in finding that stalking took place?

[¶ 7.] SDCL 22-19A-11 provides:

Upon notice and a hearing, if the court finds by a preponderance of the evidence that stalking has taken place, the court may provide relief as follows:

(1) Restrain any party from committing acts of stalking or physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9);

(2) Order other relief as the court deems necessary for the protection of the person seeking the protection order, including orders or directives to law enforcement officials.

Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.

(Emphasis added). Under this provision, a prerequisite for issuance of a protection order is a finding that "stalking" has taken place. Id. Bain argues that the trial court erred in finding that stalking took place here.

[¶ 8.] The standards of review in protection order cases have been previously established:

The trial court's decision to grant or deny a protection order is reviewed under the same standard that is "used to review the grant or denial of an injunction." First, we determine whether "the trial court's findings of fact were clearly erroneous." We will not set aside the trial court's findings of fact unless, after reviewing all of the evidence, "we are left with a `definite and firm conviction that a mistake has been made.'" Furthermore, "[t]he credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by the trial court, and we give due regard to the trial court's opportunity to observe the witnesses and examine the evidence." If the trial court's findings of fact are not clearly erroneous, we "must then determine whether the trial court abused its discretion in granting or denying the protection order."

Schaefer v. Liechti, 2006 SD 19, ¶ 8, 711 N.W.2d 257, 260 (citations omitted).

[¶ 9.] "Stalking" is defined by SDCL 22-19A-1 which provides in pertinent part:

No person may:

(1) Willfully, maliciously, and repeatedly follow or harass another person;

* * *

(3) Willfully, maliciously, and repeatedly harass another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.

A violation of this section constitutes the crime of stalking.

[¶ 10.] The trial court found that Bain: "pursued a willful and knowing course of conduct which seriously alarm[ed], annoy[ed] or harasse[d] the [Whites] with no legitimate purpose, and that the pattern of conduct [was] a series of acts over a period of time [that showed] a continuing pattern of harassment." Thus, the trial court found that stalking was committed by "harassment" as set forth in SDCL 22-19A-1(1) and (3). "Harassment" is defined by SDCL 22-19A-4: "For the purposes of this chapter, harasses means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose."

[¶ 11.] Bain argues that the trial court was clearly erroneous in finding that harassment occurred because it had previously found that her contacts with the White's served the legitimate purpose of attempting to collect an unpaid debt. Bain refers to the trial court's oral findings at the close of the first protection order hearing.³ While the trial court did state at that time that Bain's letters involved collection of a bill and did not rise to the level of a stalking or protection order case, Bain ignores that the court also issued a stern series of warnings to her in which it repeatedly pointed out that her letters were "inappropriate," that they were "annoying," that she should not send such letters, that she must exercise "professional behavior," that she could not continue writing such letters and that she must "quit the phone calls [and] quit the letters." These warnings reflect a degree of equivocation by the trial court as to the issue of harassment and a clear indication to Bain that similar acts committed in the future could well result in an adverse determination on the harassment issue.

[¶ 12.] "Harassment" requires a course of alarming, annoying or harassing conduct. SDCL 22-19A-4. A "course of conduct" is "a pattern of conduct composed of a series of acts over a period of time[.]" SDCL 22-19A-5. Thus, while an act or a preliminary set of acts might not rise to the level of harassment because it does not show a sufficient pattern of conduct, as additional alarming or annoying acts are committed, a more complete pattern of conduct may be established and the line between mere annoyance and legal harassment may be crossed. Clearly that is what occurred here where an enraged Bain finally committed what was arguably an assault on Mrs. White as the final link in the chain of annoying and harassing acts she directed toward the Whites as a consequence of the debt collection issue. Bain's contention that this incident served "the legitimate purpose of retrieving chairs" is absurd in light of the White's testimony concerning her illegal entry and crazed instigation of a physical confrontation over some old furniture that had apparently been meaningless to her up until that point in time. Bain's argument is based upon her own testimony and version of the events and not the testimony of the Whites accepted by the trial court in entering its finding of harassment. See Osman v. Karlen and Associates, 2008 SD 16, ¶ 15, 746 N.W.2d 437, 443 (quoting Fin-Ag, Inc. v. Feldman Bros., 2007 SD 105, ¶ 19, 740 N.W.2d 857, 862-863)(doubts over a trial court's findings of fact are to be resolved in favor of the successful party's version of evidence). Such a biased view of the record will not support a determination of clear error in a trial court's findings. Id.

[¶ 13.] The trial court's finding of stalking by harassment also required a showing that Bain acted "maliciously." SDCL 22-19A-1(1) & (3). Bain argues that the trial court erred in finding that she acted maliciously. "Maliciously" imports "a wish to intentionally vex, annoy, or injure another person[.]" SDCL 22-1-2(1)(a). Bain's series of offensive and insulting letters to the Whites was clearly vexing and annoying as found by the trial...