author: PER CURIAM.

text:
    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. 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 Wfliites, 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 Wfliites’ 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. 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. 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-K1) & (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(l)(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 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 [ie., 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 [ie., 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 ju-dicata 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.

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 N.W.2d 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, Arthur R. Miller & Edward H. Cooper, 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.

[¶ 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 N.W.2d 87 (S.D.1985). In reversing the trial court’s determination that res judica-ta 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 N.W.2d 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. 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 activity from a prior claim may be admissible to prove a new claim. See Lee, 374 N.W.2d 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.

      . 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.

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

      . The trial court entered no written findings or conclusions in the first protection order proceedings.

      . A protection order is a form of injunction. Sjomeling v. Stuber, 2000 SD 103, ¶ 11, 615 N.W.2d 613, 616.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2008 SD 50
    Pamela McDOWELL, Plaintiff and Appellant, v. CITICORP INC., Citibank of South Dakota, N.A.; Crawford & Company, Defendants and Appellees.
    No. 24657.
    Supreme Court of South Dakota.
    Considered on Briefs on April 21, 2008.
    Decided June 18, 2008.

      Chet Groseclose of Chet Groseclose, Prof. LLC, Sioux Falls, South Dakota, Attorney for appellant.
    Lon J. Kouri, David A. Pfeifle of May & Johnson, PC Sioux Falls, South Dakota, Attorneys for appellees Citicorp/Citibank of SD, N.A.
    Steven W. Sanford, Michael A. Henderson of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for appellee Crawford & Co.
   SABERS, Justice.

[¶ 1.] Pamela McDowell appeals the circuit court’s denial of her motion to amend her complaint to include pre-bankruptcy causes of action. We affirm.

FACTS

[¶2.] This case begins in a workers’ compensation case originating in December of 1991. As a result of her injury, McDowell entered into a settlement agreement with her employer’s insurance adjustment firm, Crawford & Company (Crawford), who administered workers’ compensation claims on behalf of her employer, Citibank/Citicorp (Citicorp). McDowell also brought a lawsuit alleging Citicorp had unreasonably delayed payments of her medical bills. She claimed the unreasonable delay in her payments constituted bad faith, intentional and negligent infliction of emotional distress, vexatious denial of claim, fraud, deceit and intentional interference with a business relationship.

[¶ 3.] Citicorp moved for summary judgment. While the circuit court was considering the motion, Citicorp learned McDowell did not include these claims or list any health care provider, hospital/clinic or collection agency of either on her October 20, 2000 bankruptcy petition. Citicorp petitioned the circuit court to hold McDowell was judicially or equitably estopped from bringing those claims. A hearing was held on May 2, 2005 where the parties discussed the effect of failing to list the pre-bankruptcy claims on the bankruptcy schedule. During that hearing, McDowell repeatedly agreed that the pre-bankruptcy claims could not be brought. Therefore, she amended her complaint a second time (second amended complaint), this time only including claims alleging bad faith, intentional and negligent infliction of emotional distress, and punitive damages for post-bankruptcy conduct.

[¶ 4.] On June 6, 2005, the circuit court issued a memorandum decision that concluded McDowell was judicially estopped from asserting pre-bankruptcy claims. Ci-ticorp was granted a partial summary judgment on the basis of judicial estoppel. Furthermore, the circuit court stayed the post-bankruptcy claims until a ruling could be obtained on her lawsuit to reopen her settlement agreement. Once the settlement agreement case had been decided, the circuit court dismissed the bad faith claim, which allegedly arose from post-bankruptcy conduct and granted summary judgment in favor of Citicorp on the remaining claims (also post-bankruptcy conduct).

[¶ 5.] On October 18, 2005, an order for summary judgment in favor of Citicorp was entered along with a judgment of dismissal, which dismissed all McDowell’s claims on the merits and with prejudice. McDowell reopened her bankruptcy case and added the pre-bankruptcy causes of action on November 21, 2005. On December 2, 2005, McDowell petitioned the circuit court, Judge Kean, to amend her second amended complaint in order to add the pre-bankruptcy claims. Less than two weeks later, before the circuit court ruled on the issue, McDowell filed a notice of appeal. This Court affirmed the judgment. See McDowell v. Citicorp, 2007 SD 53, 734 N.W.2d 14(McDowell II).

[¶ 6.] On June 6, 2007, two months after McDowell II was issued, McDowell made a revised motion to amend her second amended complaint, which was denied by the circuit court. She appeals raising the following issues:

1. Whether the circuit court had jurisdiction to grant McDowell’s motion to further amend her complaint.
2. Whether the circuit court erred when it denied McDowell’s motion to amend her second amended complaint when the motion was filed two months after this Court had affirmed the dismissal of her complaint.

STANDARD OF REVIEW

[¶7.] We review the decision denying plaintiffs request to amend pleadings under the abuse of discretion standard of review. Sejnoha v. City of Yankton, 2001 SD 22, ¶ 5, 622 N.W.2d 735, 737 (citing Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987)). “An abuse of discretion occurs when ‘discretion [is] exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” In re Name Change of L.M.G., 2007 SD 83, ¶ 6, 738 N.W.2d 71, 73-74 (quoting Miller v. Jacobsen, 2006 SD 33, ¶ 18, 714 N.W.2d 69, 76).

[¶ 8.] 1. Whether the circuit court (Judge Kean) had jurisdiction to grant McDowell’s motion to further amend her complaint while the case was on appeal.

[¶ 9.] McDowell claims Judge Kean erred in not allowing her to amend her second amended complaint, even though the case was on appeal. She argues that the circuit court retained jurisdiction to allow her to add the pre-bank-ruptcy claims even though the case was on appeal. First, Citicorp argues that Judge Kean did not have jurisdiction to allow an amendment to a complaint that was on appeal. Second, Citicorp claims this issue is not properly before this Court because McDowell did not appeal from the denial of the motion in front of Judge Kean, but has only appealed the denial of the revised motion to amend in front of Judge Srstka.

[¶ 10.] The record reflects that McDowell only appealed “the Order Denying Plaintiffs Revised Motion to Amend Second Amended Complaint rendered in this action on the 29th day of August 2007.” Therefore, we do not consider whether Judge Kean had jurisdiction to allow McDowell to amend her complaint to include pre-bankruptcy claims while appealing the dismissal of her post-bankruptcy claims.

[¶ 11.] 2. Whether the circuit court erred when it denied McDowell’s motion to amend her second amended complaint when the motion was filed two months after this Court had affirmed the dismissal of her complaint.

[¶ 12.] McDowell argues that Judge Srstka abused his discretion by denying her revised motion to amend her second amended complaint, even though all claims within the second amended complaint had been dismissed and that dismissal had been affirmed by this Court two months prior to submitting the revised motion. McDowell argues that under SDCL 15 — 6—15(a) “leave shall be freely given when justice so requires” and Citi-corp has not demonstrated it would be unduly prejudiced by allowing her to amend her complaint. Therefore, McDowell claims she should have been allowed to amend her complaint.

[¶ 13.] Citicorp argues that SDCL 15-6 — 15(a) is inapplicable because McDowell did not move to amend her complaint until after the judgment of dismissal had been granted and affirmed. In essence, Citi-corp argues that there is nothing to amend since all the claims in the second amended complaint have been dismissed. Citicorp alleges that McDowell was required to set aside the judgment before being allowed to amend.

[¶ 14.] While a search of our case law does not reveal a case on point, other jurisdictions have considered this issue. The Eighth Circuit Court of Appeals noted that “[a]lthough a pretrial motion for leave to amend one’s complaint is to be liberally granted, different considerations apply to motions filed after dismissal.” Dorn v. State Bank of Stella, 767 F.2d 442, 443 (8thCir.1985) (emphasis added). If a complaint is dismissed, “the right to amend under Fed.R.Civ.P. 15(a) [SDCL 15-6-15(a)] terminates.” Id. (additional citation omitted). If the “dismissal of the complaint also constitutes dismissal of the action[,]” then the motion to amend is improper. Id. Other courts have held that once a judgment is entered, amending the pleadings cannot be allowed until the judgment is set aside or vacated. For example, in Laber v. Harvey, 438 F.3d 404 (4thCir.2006), the Fourth Circuit Court of Appeals explained that a court cannot deny a motion to amend only because it has entered judgment against the plaintiff, but the court cannot grant the post-judgment motion to amend unless the judgment is vacated pursuant to Rule 59(e) or 60(b). Id. at 427 (citing Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir.1985) (“[O]nce judgment is entered the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b).”); Scott v. Schmidt, 773 F.2d 160, 163 (7th Cir.1985) (holding same); 6 Charles Alan Wright, Arthur R. Miller & May Kay Kane, Federal Practice & Procedure Civil 2d § 1489 (1990) (additional citations omitted)). Also, the Second Circuit Court of Appeals has noted “[t]he merit of this approach is that ‘[t]o hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation.’ ” Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 245 (2d Cir.1991) (quoting 6 Wright, Miller & Kane, Federal Practice & Procedure Civil 2d § 1489, at 694 (1990)).

[¶ 15.] Therefore, there was no abuse of discretion in denying McDowell’s revised motion to amend her second amended complaint after judgment of dismissal and summary judgment had been granted and affirmed. Essentially, there was no complaint left to amend. See Graham v. County of Washtenaw, 358 F.3d 377, 385 (6thCir.2004); Sparrow v. Heller, 116 F.3d 204, 206 (7thCir.1997). The denial of McDowell’s motion is affirmed.

[¶ 16.] Furthermore, even if we were to consider SDCL 15-6-15(a) to be the standard, McDowell has not demonstrated that Judge Srstka abused his discretion by denying the motion to amend. When considering whether a party’s motion to amend should be granted “the most important consideration in determining whether a party should be allowed to amend a pleading is whether the nonmov-ing party will be prejudiced by the amendment.” Dakota Cheese, Inc. v. Ford, 1999 SD 147, ¶ 24, 603 N.W.2d 73, 78 (additional citation omitted). The decision to grant or deny a motion to amend will be left alone unless a clear abuse of discretion has occurred. In re T.A., 2003 SD 56, ¶ 38, 663 N.W.2d 225, 237 (citing Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987)) (emphasis added).

[¶ 17.] The proposed third amended complaint attempted to add claims from over eight-to-ten years ago. As far back as 2000, the attorney for McDowell warned Citicorp that he was looking into a potential bad faith cause of action. Yet, McDowell did not list the claim on the bankruptcy schedule until 2005, but instituted this action in 2003. Indeed, when discussing this issue at a hearing in 2005, McDowell conceded that the pre-bankruptcy potential causes of actions were barred due to her failure to include them in the bankruptcy schedules. Citicorp has already engaged in substantial litigation, including an administrative hearing, two separate civil actions and two separate appeals. Citi-corp would be unduly prejudiced if forced to defend another cause of action simply because McDowell did not list the pre-bankruptcy causes of actions during her bankruptcy and failed to fix that omission until 2005. See Union Planters Nat’l Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5thCir.1982) (noting the lower court did not abuse its discretion in refusing to allow an amendment to the answer more than a year after filing the lawsuit, almost two years after the party was notified of the issue and after summary judgment had already been granted). McDowell has not shown an abuse of discretion.

[¶ 18.] For the foregoing reasons, we affirm.

[¶ 19.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . When problems continued, McDowell attempted to reopen her settlement agreement in circuit court. This attempt was denied by the circuit court and affirmed by this Court. See McDowell v. Citibank, 2007 SD 52, 734 N.W.2d 1 (McDowell I). The defendants will be collectively referred to as Citicorp unless further distinction is necessary.

      . The claims were brought in two parts. The first complaint alleged bad faith refusal to pay, negligence, negligent infliction of emotional distress, vexatious denial of claim and punitive damages. In August 2004, she amended her complaint (amended complaint) and claimed damages for bad faith, fraud and deceit, intentional and negligent infliction of emotional distress, intentional interference with business relations, vexatious denial of claim and punitive damages.

      . Attorney for McDowell was also appointed by the bankruptcy court to represent the bankruptcy trustee’s interest, but was not appointed until May 11, 2006.

      . McDowell's docketing statement from the appeal in McDowell II claims to appeal the order granting partial summary judgment (judicial estoppel of pre-bankruptcy claims) filed on June 20, 2005. However, the issue statement listed in the docketing statement only raises the issue whether the post-bankruptcy claims are actionable.

      . Dorn referenced the standard under Federal Rules of Civil Procedure Rule 15(a). However, Rule 15(a) and SDCL 15-6-15(a) are virtually identical and we may consider cases which interpret the federal rule. See State v. Westerfield, 1997 SD 100, ¶ 16, 567 N.W.2d 863, 868.


text:
    2008 SD 51
    GUARDIANSHIP AND CONSERVATORSHIP OF Dennis P. FISCHER, A person alleged to need protection.
    No. 24631.
    Supreme Court of South Dakota.
    Considered on Briefs on April 21, 2007.
    Decided June 18, 2008.
    Drew C. Johnson, Aberdeen, South Dakota, Attorney for appellant Andrew Fischer.
    Christy Griffin Serr, Aberdeen, South Dakota, Attorney for appellee Shirley A. Johnson a.k.a. Shirley A. Fischer.
   SABERS, Justice.

[¶ 1.] Shirley A. Johnson (a.k.a. Shirley Fischer) petitioned to have her ex-husband, Andrew Fischer, removed as co-guardian and co-conservator of their twenty-three year old son, Dennis. The circuit court granted the petition removing Andrew. We affirm.

FACTS

[¶ 2.] In 2002, Shirley and Andrew were appointed co-guardians and co-conservators of their son, Dennis. At the time Dennis was eighteen years old. He is developmentally disabled, has a seizure disorder, cataracts, is legally blind, has limited reading and writing ability, mild hearing loss and is in need of supervision.

[¶ 3.] Shirley, Andrew and Dennis decided that it would be best for Dennis to reside in an Adjustment Training Center (ATC) facility in Aberdeen, South Dakota. They wanted Dennis to learn to live as independently as possible. Dennis moved into an ATC apartment. He had a job through ATC and, in addition to vocational services, ATC provided other services such as housing, physical therapy, recreation, nursing and employment options in the community.

[¶ 4.] Over the next few years, Andrew had many concerns about the treatment Dennis was receiving from ATC. Andrew would continually call doctors regarding Dennis’ care and complain about the quality of services provided to Dennis. According to an ATC worker’s testimony, Andrew would tell ATC employees how and when drugs should be administered. When the ATC employee explained that was against policy or doctor’s orders, he would call the doctor repeatedly in an attempt to get the directions “clarified” or outright changed. Andrew would yell at the staff. If unsatisfied with something, Andrew would write to the Attorney General and Brown County State’s Attorney’s Office asking ATC be investigated. Additionally, Andrew would continually take Dennis out of town for three to four days at a time, interfering with his job.

[¶ 5.] Eventually, the problems created a breaking point for ATC and a meeting was held in March of 2006, with ATC services coordinator Dana Spellman, ATC Director Rob Wanous, Services Coordination Director Arlette Keller, Shirley and Andrew. During this meeting Spellman explained that there were too many conflicts between Andrew and ATC. There was a conflict between how Shirley and Andrew wanted Dennis to live. Shirley supported Dennis learning to live as independently as possible, while Andrew wanted to micromanage everything and really wanted Dennis to live at home with him. Due to the conflicts, ATC informed Shirley and Andrew that Dennis could no longer reside at ATC, but it would continue to provide vocational services during the day. Spellman explained that it was not in Dennis’ best interest to leave the residency program, but it was in the agency’s best interest because of Andrew’s actions.

[¶ 6.] Shirley petitioned for termination of Andrew’s guardianship and conservator-ship of Dennis. A hearing was held on May 7, 2007. At the conclusion of the hearing, the circuit court found that Andrew may believe he has Dennis’ best interest at heart, but his actions and the results are not in Dennis’ best interest. Therefore, under SDCL 29A-5-504(12), the circuit court terminated Andrew’s guardianship and conservatorship because Andrew was not acting in the best interest of Dennis’ even though without fault. Andrew appeals raising the following issue:

Whether the circuit court abused its discretion in removing Andrew as. co-guardian and co-conservator of Dennis.

STANDARD OF REVIEW

“In guardianship proceedings, the trial court’s findings of fact are reviewed under the ‘clearly erroneous’ standard.” Guardianship of Larson, 1998 SD 51, ¶ 13, 579 N.W.2d 24, 27 (citing In re Guardianship of Viereck, 411 N.W.2d 102, 106 (S.D.1987) (citing SDCL 15 — 6—52(a))). According to this test, “[w]e will not overturn the trial court’s findings unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake was made.” Id. (citing Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D.1985)).

In re Guardianship & Conservatorship of Miles, 2003 SD 34, ¶ 11, 660 N.W.2d 233, 236. We will not reverse the termination of a guardian or conservatorship unless the decision was an abuse of discretion. See In re Guardianship of Blare, 1999 SD 3, ¶ 9, 589 N.W.2d 211, 213 (additional citation omitted).

[¶ 7.] Whether the circuit court abused its discretion in [removing] Andrew as co-guardian and co-conservator of Dennis.

[¶ 8.] First, Andrew argues that the circuit court did not make findings or conclusions as required by SDCL 15-6-52(a). “Generally, the failure to file findings of fact and conclusions of law constitutes reversible error.” Toft v. Toft, 2006 SD 91, ¶ 11, 723 N.W.2d 546, 550 (citing Grode v. Grode, 1996 SD 15, ¶ 29, 543 N.W.2d 795, 803). “However, we have also noted that an appellate court may remand for findings, or, because findings are not jurisdictional, ‘an appellate court may decide the appeal without further findings if it feels it is in a position to do so.’ ” Id. (quoting Hoffman v. Olsen, 2003 SD 26, ¶ 10, 658 N.W.2d 790, 793 (quoting Ridley v. Lawrence County Com’n, 2000 SD 143, ¶ 13, 619 N.W.2d 254, 259)) (additional citations omitted).

[¶ 9.] It is unnecessary to remand for further findings in this case. While the circuit court did not file separate findings of fact and conclusions of law, it did enur merate some findings and conclusions in its order terminating co-guardianship and co-conservatórship and appointment of sole guardian and conservator. The order in relevant part provides:

Upon consideration of the Petition for Termination of Co-Guardianship and Co-Conservatorship, the [c]ourt finds:
1. The court heard the testimony and received the documents on file and finds that the notice has been properly served upon Dennis P. Fischer, Andrew Fischer, Shirley Johnson and otherwise given to all interested persons.
2. The co-guardianship and co-conser-vatorship was terminated due to the inability of the co-guardians and co-conservator’s to arrive at decisions regarding the health and well being of Dennis P. Fischer.
3. Good cause has been shown for the termination.
4. That it would be in the best interest of Dennis P. Fischer that Shirley Johnson be appointed the sole guardian and conservator of Dennis P. Fischer.

Furthermore, the circuit court issued its decision at the end of the hearing and the record contains other findings and conclusions regarding the decision. Accordingly, the record is sufficient to consider this appeal.

[¶ 10.] Andrew argues that the circuit court abused its discretion because he and Shirley got along fine; it was only his problem with ATC that was in issue and ATC is not the co-guardian. Furthermore, Andrew argues that termination of his guardian and conservatorship is akin to terminating his parental rights. He urges this Court to interject the parental termination standard into a guardian and conservatorship proceeding and find that termination was not the least restrictive alternative. He argues that “[s]ince the other avenues pointed out [in his brief] were not pursued, it was the failure to exhaust those potential remedies that strikes at the heart of [Andrew’s] argument.”

[¶ 11.] Shirley argues that that circuit court did not abuse its discretion because it is in Dennis’ best interest to remove Andrew as the co-guardian and co-conservator. She argues that Dennis should stay in Aberdeen, SD around friends and family, in a familiar setting. Yet, ATC is the only facility available that can help Dennis be independent and ATC will not allow Dennis to live there while Andrew is the co-conservator. ATC will allow Dennis to resume residential treatment if Shirley is the only conservator.

[¶ 12.] The record indicates that the circuit court did not abuse its discretion. First, we refuse to use a parental termination standard in a termination of guardianship/conservatorship. The plain language of the statutes is clear and we follow the standard set forth for guardian and conservator proceedings. Second, the testimony reflects that Andrew, while having good intentions, was not acting in the best interest of Dennis. The testimony indicates that Dennis needs stability and change is hard for him. Yet, his father’s actions in antagonizing the staff by yelling, micromanaging and writing so many letters that ATC feared a lawsuit, resulted in Dennis’ removal from the residential facility. Andrew also removed Dennis from his job so often that Dennis was having a hard time grasping certain tasks and Dennis had to relearn those tasks after Andrew brought him back. Andrew is touring facilities in Sioux Falls, South Dakota and out of state in order to place Dennis in a facility similar to ATC in Aberdeen, South Dakota. However, Dennis’ family and friends are in Aberdeen and Dennis is comfortable and likes living at ATC in Aberdeen.

[¶ 13.] At the conclusion of the hearing, after considering the testimony of the witnesses and reviewing the evidence, the circuit court determined that it was in Dennis’ best interest for Shirley to be the sole guardian and conservator and to terminate Andrew’s guardian and conserva-torship. It found that it was in the best interest for Dennis to stay in Aberdeen where he is near both of his loving parents. It noted that Andrew had a fundamental mistrust of people that “causes relationships to break down and that is hurting Dennis at this point, because that is essentially the reason that he was removed from the residential program.... ” Finally, the circuit court found that it was in Dennis’ best interest to get back into the residential program at ATC and concluded the only way for that to happen was to appoint Shirley the sole guardian and conservator. As counsel for the children stated in closing argument,

Dennis needs a guardian to advocate for him, to act in his best interest, to encourage relationships and look out for Dennis’ care and needs and wants and I know that his parents have been working to do that, but this current guardianship arrangement is not working. Dennis was booted from the apartment with the residential program through ATC. Professionals who work with Dennis have been accused of all kinds of things. Doctors have been pushed, frustrated to comply with Andy’s desires for Dennis. Change is difficult for Dennis. Change is difficult for anyone in Dennis’ situation. Currently, Dennis is in a program that’s working. He enjoys what he’s doing.... He is comfortable with the staff. A move at this point would not be in Dennis’ best interest. A move because Andy alienated the ATC as far as the residential program is not in Dennis’ best interest. Dennis needs someone to help build bridges, not to set them aflame ....

SDCL 29A-5-504 provides in part:

Upon petition by any interested person or on the court’s own motion, the court may remove a guardian or conservator or order other appropriate relief if the guardian or conservator:
(12) Is not acting in the best interests of the minor or protected person or of the estate even though without fault.

[¶ 14.] Given the record, Andrew has not demonstrated that the circuit court abused its discretion.

[¶ 15.] Affirmed.

[¶ 16.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Andrew has also written letters regarding ATC's care to the Division of Developmental Disabilities, the director of Health and Human Services, the head of Growth and Developmentally Delayed branch in Pierre and an advocate in Pierre.

      . The report from this meeting provides that Spellman spoke with Dennis about no longer living at his apartment. Dennis replied that his dad had told him last night. When asked if Dennis wanted to live with his dad, Dennis replied that he wanted to live with his dad, but that his dad told him to say that. When asked where he wanted to live, without worrying about mom or dad, he responded he wanted to stay in his apartment.

      . Shirley petitioned that a neutral third party could be appointed as guardian and conservator. At the conclusion of the hearing, the circuit court judge said he would appoint a third party if both parties agreed that a neutral party should be appointed. However, Andrew would not agree.

      . ATC also indicated Dennis could return if a neutral third party was appointed as guardian and conservator.

      . The record also contains letters from Andrew to the circuit court and his children alleging a multitude of claims, including: a depravation of his constitutional rights, a conspiracy among health professionals and others, that he was slandered and defamed by opposing counsel during cross-examination, his wife is mentally unstable, his wife was pushed into divorcing him by her therapist, he was "sold out” by his attorney, and accusations against various counselors and professionals for being "communist/terrorist subversives” who may have led to their family’s demise.