#24698-a-PER CURIAM 

2008 SD 52

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

KATHLEEN S. WHITE 

and ALLEN L. WHITE, Petitioners and Appellees, 

 v. 

NANCY BAIN, Respondent and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE THIRD JUDICIAL CIRCUIT 

LAKE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE TIM D. TUCKER 

Judge 

* * * * 

DANIEL J. BROWN of 

Lammers, Kleibacker & Brown, LLP Attorneys for petitioners 

Madison, South Dakota and appellees. 

KENNETH M. TSCHETTER of 

Tschetter Law Office, PC Attorney for respondent 

Sioux Falls, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON APRIL 21, 2008 

 OPINION FILED 6/18/08 
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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, 

 

1. The Whites' regular residence was in Council Bluffs, Iowa. Their cabin on 

Lake Madison was a recreational residence used by them about six months a 

year. 
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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. 

2. Mr. White made no physical contact with Bain during this altercation. 
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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 
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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 NW2d 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 
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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 

3. The trial court entered no written findings or conclusions in the first 

protection order proceedings. 
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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 NW2d 437, 443 (quoting Fin-Ag, Inc. 

v. Feldman Bros., 2007 SD 105, ¶ 19, 740 NW2d 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 court at the close of the first protection order 

hearing. Bain's entry into the White's residence and attempt to recover her chairs 

by force also reflected an intention to vex and annoy the Whites and perhaps even 

to injure Mrs. White. Thus, there was no error in the trial court's finding of malice. 

Bain's contentions to the contrary are again based upon a biased view of the 

testimony and evidence in her favor rather than the evidence in favor of the trial 
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court's findings. This provides no basis for reversal of the finding of malice. 

Osman, supra. 

[¶14.] Based upon the foregoing, the trial court did not err in finding that 

stalking took place in this case. 

ISSUE TWO 

[¶15.] Did res judicata bar the trial court from considering Bain's 

collection letters in determining whether stalking took place? 

[¶16.] At the beginning of the second protection order hearing, the trial court 

took judicial notice of the prior protection order proceeding between the parties "for 

all the background information." Bain's counsel registered no objection to 

consideration of the prior proceeding "for that purpose." However, at the close of 

the hearing, Bain's counsel objected on res judicata grounds to consideration of 

Bain's collection letters from the first proceeding as part of the basis for a finding 

that stalking took place. The objection was denied and the trial court later entered 

the following finding: 

That [Bain] has a history of using inappropriate collection 

practices in an effort to collect upon a disputed debt which 

she believes the [Whites] owe her. That [Bain] has 

written letters which have been received as evidence in 

TPO No. 07-06 [i.e., the first protection order proceeding]. 

This Court has taken judicial notice of TPO NO. 07-06 

and finds . . . [Bain’s] actions on August 14, 2007 [i.e., the 

chair incident] to be a pattern of conduct that is a series of 

acts over a period of time which is alarming, annoying 

and harassing with no legitimate purpose. 

[¶17.] Bain argues that res judicata should have barred the trial court from 

considering her letters from the first protection order hearing as part of the basis 

for its finding of stalking. 
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The applicability of the doctrine of res judicata is a 

question of law examined de novo. "'The doctrine of res 

judicata serves as claim preclusion to prevent relitigation 

of an issue actually litigated or which could have been 

properly raised and determined in a prior action.'" 

"'For purposes of res judicata, a cause of action is 

comprised of the facts which give rise to, or establish, the 

right a party seeks to enforce . . . . [T]he test is a query 

into whether the wrong sought to be redressed is the same 

in both actions.'" 

Glover v. Krambeck, 2007 SD 11, ¶¶ 17-18, 727 NW2d 801, 805 (citations 

omitted)(emphasis original). 

[¶18.] Authorities have recognized that there are unique considerations in 

applying normal principles of res judicata to claims arising out of continuing or 

renewed conduct such as those here. One treatise devotes a section of analysis to 

the issue. See 18 Charles Alan Wright et al., Federal Practice and Procedure § 4409 

(2d ed 2002). As set forth therein: 

The line between the consequences of completed past 

conduct and the impact of continuing or renewed conduct 

is itself blurred when the consequences of completed 

conduct are aggravated by separate or continuing 

conduct. Aggravation of an original injury by separate or 

continuing conduct may support a new claim. 

* * * 

The conclusion that continuing activity generates a new 

claim need not mean that the earlier activity is irrelevant 

to the new claim. Although claim preclusion bars 

reopening the claim advanced in the first action, evidence 

of the underlying activity may be admissible to prove the 

new claim. 

Id. 
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[¶19.] This Court has applied principles similar to those above in an 

injunction action where a respondent attempted to plead the denial of an earlier 

injunction against an alleged nuisance (a drainage ditch) as a bar to a second action 

to abate the nuisance. See Lee v. Schultz, 374 NW2d 87 (SD 1985). In reversing 

the trial court's determination that res judicata barred the second action, this Court 

concluded: 

At the time of the commencement of the first action, there 

was simply no damage shown resulting from the ditching. 

If [petitioner] had appealed the trial court's first decision, 

it would undoubtedly have resulted in an affirmance. 

But, now, circumstances have changed. . . . [A] 

considerable portion of [petitioners'] land is inundated. 

They are entitled to seek injunctive relief. 

Lee, 374 NW2d at 91 (emphasis added). 

[¶20.] While one might question the relevance of a case on drainage ditches 

to a protection order proceeding, the scenarios are more similar than they might 

initially appear. As in Lee, the trial court here found the evidence in the first action 

insufficient to warrant injunctive relief.4 Bain then committed new acts of 

harassment against the Whites and, as with the flooding in Lee, circumstances 

changed and new evidence existed that made it sufficient for the Whites to obtain 

relief. Thus, the trial court appropriately allowed the White's to proceed over Bain's 

res judicata objections. As for contentions concerning the propriety of considering 

the record of the first action in the second action, this was also done in Lee and is 

consistent with the observation in Wright and Miller that evidence of underlying 

4. A protection order is a form of injunction. Sjomeling v. Stuber, 2000 SD 103, 

¶ 11, 615 NW2d 613, 616. 
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activity from a prior claim may be admissible to prove a new claim. See Lee, 374 

NW2d at 88 (review of findings of fact from first injunction action). See also Wright 

et al., supra, at § 4409. 

[¶21.] We emphasize that, essential to our decision here are the acts 

committed by Bain subsequent to the first protection order proceeding. Absent 

those subsequent acts, there would have been no changed circumstances such as 

those in Lee and normal principles of res judicata would have barred the Whites 

from simply reopening the same claims they advanced in the first protection order 

proceeding. See Wright et al., supra, at § 4409 (claim preclusion bars reopening 

claim advanced in first action). See also e.g. Bumgardner v. Bumgardner, No. 

CA2004-07-172, 2005 WL 1545790 (OhioCtApp July 5, 2005)(trial court did not 

abuse its discretion in dismissing appellant's second petition for a protection order 

on basis of res judicata where grounds for petition were based solely on events 

alleged in appellant's first petition). Because of Bain's subsequent acts, however, 

we hold that res judicata did not bar the second action or the trial court from 

considering her collection letters as part of the basis for determining that stalking 

took place. 

[¶22.] Affirmed. 

[¶23.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER 

and MEIERHENRY, Justices, participating.