#24889-a-PER CURIAM 

2009 SD 3 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

PIONEER BANK & TRUST, 

SPECIAL ADMINISTRATOR OF THE 

ESTATE OF ELEANOR YOUMAN SIGLOH, Plaintiff and Appellee, 

 v. 

DAWN REYNICK a/k/a DAWN ROWE, Defendant and Appellant, 

and 

DORCAS CAMERON, GERALD CAMERON, 

DAWN REYNICK a/k/a DAWN ROWE, TROY 

CAMERON, TODD REYNICK CAMERON, Defendants. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SIXTH JUDICIAL CIRCUIT 

JACKSON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE LORI S. WILBUR 

Judge 

* * * * 

KAREN PAIGE HUNT 

THOMAS E. BRADY of 

Brady Pluimer, PC Attorneys for plaintiff 

Spearfish, South Dakota and appellee. 

PATRICK M. GINSBACH of 

Farrell, Farrell & Ginsbach, PC Attorneys for defendant 

Hot Springs, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON NOVEMBER 3, 2008 

 OPINION FILED 1/14/09 
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PER CURIAM 

[¶1.] Dawn Reynick, also known as Dawn Rowe (Rowe), appeals an order 

sanctioning her and her attorney, Patrick Ginsbach (Ginsbach), in the amount of 

$4,920.61 payable to Pioneer Bank and Trust (Bank). We affirm. 

FACTS 

[¶2.] Rowe’s mother, Dorcas Cameron (Dorcas), and Dorcas’s husband, 

Gerald Cameron (Gerald), who was Rowe’s stepfather, exercised a power of attorney 

for a period of time on behalf of Dorcas’s aunt, Eleanor Youman Sigloh (Sigloh). 

Upon Sigloh’s death, Dorcas was appointed her personal representative. While 

occupying these positions of trust, Dorcas engaged in self-dealing by obtaining funds 

from Sigloh and her estate in the approximate amount of $324,353.85. Some of the 

funds were spent while the balance was deposited or invested in accounts held by 

Dorcas, Gerald or Dorcas’s other daughter, Laurie Robertson (Laurie). 

[¶3.] In late 2006, Bank, as special administrator of Sigloh’s estate, 

commenced an action against Dorcas, Gerald, Laurie and two other individuals who 

once exercised a power of attorney on Sigloh’s behalf. The complaint raised causes 

of action for breach of fiduciary duty and fraud and sought an accounting and 

damages. 

[¶4.] Following Bank’s commencement of its action, discovery ensued. A 

series of partial summary judgments were then entered against the various 

defendants in the case. A partial summary judgment in the amount of $454,626.08 

was entered against Dorcas in April 2007. 

[¶5.] During the discovery process, information was discovered suggesting 

that Dorcas had not only transferred funds obtained from Sigloh and her estate to 
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Gerald and Laurie, but also to several of her other children, including Rowe. Thus, 

in July 2007, Bank moved to amend its complaint to join Rowe and three of her 

siblings as defendants in the action previously commenced against Dorcas and the 

other original defendants. An order granting the motion was entered on August 16, 

2007. On September 26, 2007, Rowe filed an answer in the action and a 

counterclaim against Bank for barratry. Rowe alleged that Bank’s action was 

frivolous, malicious and brought for an improper and unjustifiable motive. 

[¶6.] On November 8, 2007, the circuit court entered a partial summary 

judgment against Laurie in the amount of $23,601.28 on a theory of implied trust. 

In December 2007, Bank moved for sanctions against Rowe and her attorney, 

Ginsbach, alleging that Rowe’s counterclaim for barratry was unwarranted and 

interposed for improper purposes. On February 13, 2008, Bank filed a motion for 

summary judgment on Rowe’s counterclaim. An order granting the motion was 

entered on March 26, 2008. The order also imposed sanctions on Rowe and her 

attorney, Ginsbach, in the amount of $4,920.61. A judgment for the sanctions was 

entered on April 9, 2008. Rowe appeals. 

ISSUE ONE 

[¶7.] Whether the circuit court erred in failing to enter findings of 

fact and conclusions of law?

[¶8.] The circuit court did not enter findings of fact and conclusions of law in 

support of its order or judgment imposing sanctions. Rowe argues this requires 

reversal of the award. 

[¶9.] SDCL 15-6-11(c) once required a court awarding sanctions to enter 

findings of fact and conclusion of law in support of the award. See SDCL 15-6-
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11(c)(2004). This express requirement was omitted when this Court amended 

SDCL 15-6-11(c) by rule in 2006. See 2006 SDSessL ch 281 (Supreme Court Rule 

06-07). Currently, the only explicit requirement that a rationale be set forth for an 

award of sanctions appears in SDCL 15-6-11(c)(3): “Order. When imposing 

sanctions, the court shall describe the conduct determined to constitute a violation 

of this rule and explain the basis for the sanction imposed.” This language is 

essentially analogous to Federal Rule of Civil Procedure 11(c)(6): “An order 

imposing a sanction must describe the sanctioned conduct and explain the basis for 

the sanction.” Rule 11(c)(6) has been analyzed as follows: 

If sanctions are deemed appropriate, the 1993 

amendment requires that the district court “describe the 

conduct determined to constitute a violation” of Rule 11

and “explain the basis for the sanction imposed.” Thus, as 

the illustrative cases cited in the note below make clear, 

the district judge should indicate fairly precisely what 

conduct has been found to be improper and under which 

provision of law the sanctions are being awarded by the 

court. In addition, and particularly when a substantial 

amount of money is involved, the district judge should 

state with some specificity the manner by which the 

sanction has been computed. These requirements are 

designed to promote the rational exercise of trial court 

discretion in the utilization of Rule 11 and to facilitate 

effective appellate review. Some federal courts, however, 

have been less specific when the sanction has been based 

on the general conduct of the litigation by the lawyer who 

is being sanctioned. 

5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 

1337.3 (2008)(emphasis added). 

[¶10.] Here, the court’s order granting sanctions provided: 

Furthermore, the Court, having determined that the 

evidence and law supports the claim against Rowe, in that 

evidence showed Rowe received funds unlawfully removed 
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from the Estate of Eleanor Youman Sigloh by Dorcas 

Cameron and Gerald Cameron, the Court granted 

summary judgment against Rowe’s sibling Laurie 

Robertson who had received funds unlawfully removed 

from the Estate of Eleanor Youman Sigloh by Dorcas 

Cameron and Gerald Cameron and the Court authorized 

joining Rowe as a defendant in the action and that the 

claim against Rowe was not frivolous or malicious or filed 

in bad faith; and the Court, having determined that the 

counterclaim of barratry was asserted without reasonable 

inquiry into whether the counterclaim was warranted by 

existing law, without argument for the extension, 

modification or reversal [of] existing law and without 

evidentiary support; and the Court having determined 

that Rowe and her attorney Patrick Ginsbach should be 

sanctioned for violating SDCL 15-6-11(c), it is hereby 

ORDERED that the motion for Sanctions Pursuant to 

SDCL 15-6-11(c) on Counterclaim of Barratry shall be and 

the same is GRANTED; and it is further 

ORDERED that Defendant Rowe and her attorney 

Patrick Ginsbach shall pay, as sanctions, the amount of 

$4,920.61, as the expenses incurred by Plaintiff in 

attorney’s fees and expenses of responding to and 

defending the barratry counterclaim, and Rowe and her 

attorney Patrick Ginsbach shall be jointly and severally 

liable for the sanctions . . .. 

[¶11.] These passages from the court’s order fulfill the requirement that the 

court indicate with fair precision the conduct found improper and the provisions of 

law under which sanctions are being awarded. See Wright and Miller at § 1337.3. 

They further fulfill the requirement that the court state with specificity the manner 

by which sanctions have been computed. Id. Thus, the absence of formal findings 

of fact and conclusions of law on these issues does not require reversal of the 

sanctions award. See Foval v. First Nat. Bank of Commerce in New Orleans, 841 

F2d 126, 130 (5thCir 1988)(district court need not support its Rule 11 decision with 

specific findings of fact and conclusions of law if justification underlying the decision 
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is readily apparent from the record); Nat’l Bank of Arkansas in N. Little Rock v. 

Parks, 970 F2d 480, 483 (8thCir 1992)(court need not make detailed factual findings 

and legal conclusions in making a Rule 11 determination if its findings and 

conclusions, as well as the record, are adequate to give the appellate court a clear 

understanding of the grounds for the court’s decision). 

ISSUE TWO 

[¶12.] Whether the circuit court abused its discretion in awarding 

Bank sanctions?

[¶13.] Appeals involving sanctions under Rule 11 (SDCL 15-6-11) are 

reviewed under the abuse of discretion standard of review. Hahne v. Burr, 2005 SD 

108, ¶ 22, 705 NW2d 867, 874. An abuse of discretion is a discretion exercised to an 

end or purpose not justified by, and clearly against, reason and evidence. Id. 

[¶14.] Rowe argues there was no evidence to support Bank’s claim against 

her and, therefore, its cause of action was frivolous and malicious. Rowe contends 

that because Bank’s action was frivolous and malicious, her counterclaim for 

barratry was warranted. Accordingly, she argues that the circuit court abused its 

discretion in awarding Bank sanctions for her counterclaim. 

[¶15.] Barratry is defined by SDCL 20-9-6.1 which provides in pertinent part: 

“Barratry is the assertion of a frivolous or malicious claim or defense or the filing of 

any document with malice or in bad faith by a party in a civil action.” (Emphasis 

added). Thus, “[c]ivil barratry exists when a party brings a frivolous or malicious 

claim.” Citibank (S.D.), N.A. v. Hauff, 2003 SD 99, ¶ 30, 668 NW2d 528, 537. 

“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 
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frivolousness there must be such a deficiency in fact or 

law that no reasonable person could expect a favorable 

judicial ruling. . . . [F]rivolousness ‘connotes an improper 

motive or [a] legal position so wholly without merit as to 

be ridiculous.’” 

A malicious action is one brought for an improper, 

unjustifiable motive. 

“[A]n action is malicious if it ‘is begun in 

malice, and without probable cause to believe 

it can succeed, and which finally ends in 

failure.’” . . . Malice “exists when the 

proceedings are instituted primarily for an 

improper purpose.” An improper purpose 

occurs in situations where: 

the plaintiff in the original action was 

actuated by any unjustifiable motive, 

as where he did not believe his claim 

would be held valid, or where his 

primary motive was hostility or ill 

will, or where his sole purpose was to 

deprive the defendant of a beneficial 

use of his property or to force a 

settlement having no relation to the 

merits of the claim. 

Id., ¶¶ 31 – 32, 668 NW2d at 537 (citations omitted). 

[¶16.] In determining whether the claim at issue in Citibank was frivolous or 

malicious so as to constitute barratry, this Court concluded: 

Although we hold today that [plaintiff] did not have a 

legal claim against [defendant], [plaintiff’s] action was not 

frivolous or malicious. [Plaintiff] raised rational 

arguments based on the evidence and law in support of its 

claim. The discovery and briefing also reflect that the 

claim did not lack merit to the extent that no reasonable 

person could expect a favorable judicial ruling or that it 

was so wholly without merit as to be ridiculous. We 

finally see no evidence to support the notion that 

[plaintiff] had an improper motive when it commenced its 

collection action against [defendant]. 
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Citibank, 2003 SD 99, ¶ 33, 668 NW2d at 537. 

[¶17.] Applying a similar analysis here, even if Bank did not have a legal 

claim against Rowe, Bank’s action was not frivolous or malicious. Bank first 

introduced its claim against Rowe in a motion to amend its complaint and join 

parties in July 2007. In its amended complaint, Bank alleged that funds wrongfully 

received by Dorcas were distributed to Rowe and some of her siblings and that 

Sigloh’s estate was entitled to recover them. Dorcas, who had already been held 

liable for her actions, resisted the amendment of the complaint and joinder of Rowe 

and her siblings as parties, but admitted giving Rowe some money. The court 

subsequently granted the amendment of the complaint and joinder of Rowe and her 

siblings in an order entered in August 2007. The court thereby determined that 

Rowe was a necessary party to the action. See SDCL 15-6-19(a)(persons who must 

be joined as parties in an action). 

[¶18.] After Rowe filed her answer and counterclaim for barratry, Bank 

exchanged a series of letters with Rowe’s counsel setting forth the legal and 

evidentiary basis for its claim against Rowe and advising that it would seek 

sanctions for Rowe’s counterclaim if it was not withdrawn. Bank further explained 

the basis for its claim in answers to interrogatories from Rowe and in its response to 

Rowe’s request for the production of documents. Specifically, Bank referenced 

statements Dorcas and her husband provided under oath in depositions and 

answers to interrogatories indicating that they had given significant amounts of 

cash to their children, including Rowe, from funds obtained from Sigloh and her 
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estate. Bank also referred to Dorcas’s bank records showing checks written to 

Rowe and large withdrawals of cash during the relevant time period. 

[¶19.] Whether Bank could ultimately prevail on its claim against Rowe 

should not have been a consideration for Rowe or her counsel in assessing whether 

the claim was barratrous. See Ridley v. Lawrence County Comm’n, 2000 SD 143, ¶ 

14, 619 NW2d 254, 259 (“[s]imply because a claim or defense is adjudged to be 

without merit does not mean that it is frivolous.”). Rather, the existence of Bank’s 

“rational arguments based on the evidence and law in support of its claim” should 

have informed Rowe and her counsel that the claim was not frivolous or malicious 

within the meaning of barratry. See Citibank, 2003 SD 99, ¶ 33, 668 NW2d at 537. 

Moreover, Bank actually succeeded on similar arguments in obtaining its summary 

judgment against Rowe’s sister, Laurie. Thus, it should have been apparent to 

Rowe and her counsel that Bank’s claim was neither so lacking in merit “that no 

reasonable person could expect a favorable judicial ruling” nor “so wholly without 

merit as to be ridiculous.” Id. Nothing should have made this more apparent than 

the circuit court’s granting of Bank’s motion to join Rowe as a defendant in the 

action. It would have been incongruous for the court to order on the one hand that 

Rowe should be joined as a necessary party defendant to Bank’s action while 

holding on the other hand that Bank’s claim against Rowe was so wholly without 

merit as to be ridiculous. 

[¶20.] Finally, in addition to the foregoing, it should be noted that, as in 

Citibank, there is no evidence in the record of this case to support the notion that 

Bank had an improper motive in commencing its action against Rowe and, therefore 
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acted with malice. Thus, there was simply no basis for Rowe to mount a claim of 

barratry against Bank and the circuit court did not abuse its discretion in 

sanctioning Rowe for raising it. 

APPELLATE ATTORNEY’S FEES 

[¶21.] Bank moves for an award of its appellate attorney’s fees. The motion is 

accompanied by a “verified, itemized statement of legal services rendered” as 

required by SDCL 15-26A-87.3. 

[¶22.] Attorney’s fees are allowed when statutory authority authorizes the 

award. In re Conservatorship of Irwin, 2007 SD 41, ¶ 25, 732 NW2d 411, 417. 

SDCL 15-6-11(e) authorizes the award here: 

The Supreme Court shall consider all appeals pursuant to 

§§ 15-6-11(a) through 15-6-11(d) without any presumption 

of the correctness of the trial court’s findings of fact and 

conclusions of law. Reasonable attorneys’ fees and costs 

shall be awarded to the successful party on appeal. 

Accordingly, Bank is granted its appellate attorney’s fees in the amount of 

$3,770.44. 

[¶23.] Affirmed. 

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

MEIERHENRY, Justices, and SABERS, Retired Justice, participating.