author: HALBROOKS, Judge.

text:
    Chancellor MANOR, Appellant, v. Judy GALES, et al., Respondents.
    No. C7-02-84.
    Court of Appeals of Minnesota.
    Aug. 27, 2002.

      Chad McKenney, Donohue McKenney, Ltd., Minneapolis, MN, for appellant.
    Lisa R. Hollingsworth, Southern Minnesota Regional Legal Services, Inc., Prior Lake, MN, for respondents.
    Considered and decided by HANSON, Presiding Judge, ANDERSON, Judge, and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the dismissal of its eviction action against respondents, arguing that the trial court erred in finding that appellant did not suffer an adverse financial effect from its repeated disputes with respondents so as to warrant eviction under the Department of Housing and Urban Development guidelines. Because we conclude that the administrative costs incurred by appellant constitute an adverse financial effect, we reverse and remand.

FACTS

Appellant Chancellor Manor owns an apartment building in Burnsville and rents to respondents Judy Gales and Rasheda Gales through a Department of Housing and Urban Development (HUD) subsidized program. Appellant has filed at least 68 late-rent notices and 8 prior unlawful de-tainer/eviction actions against respondents since October 1992. Respondents always eventually paid the rent due and the penalties and other costs that appellant could recover under the law. Appellant often worked out special arrangements with respondent Judy Gales to help her avoid missing work and incurring legal fees.

Appellant filed the latest eviction action on October 25, 2001, after respondents failed to pay rent for September and October. Appellant instructed respondents to vacate the premises by November 30, pursuant to a HUD provision in the lease permitting eviction for repeated minor lease violations that have an adverse financial impact on the program. After receiving this notice, respondents paid rent for September, October, and November. Respondents also tendered rent for December, but appellant rejected the December payment because it wanted respondents to vacate the apartment by November 30. Appellant denied respondents’ internal appeal.

Wendy Howell, site manager at respondents’ building, testified on behalf of the appellant at a bench trial. Howell testified that filing a late-rent notice involves filling out the required paperwork and then copying, filing, and mailing the forms. She stated that the steps to file an eviction action include preparation of the eviction forms by the home office, driving to the home office to pick up the forms, filing them at the courthouse, serving the documents on the subject-residents, and refiling them at the courthouse. Howell estimated that the eviction-notice process takes approximately three hours, not including any time spent in the ensuing court proceedings. She also testified that respondents paid all the late fees and court costs that they owed, but that appellant paid its own attorney fees.

The trial court acknowledged that respondents had paid their rent late many times in the past, but found that appellant had recovered all its costs allowed under the law. While recognizing that appellant incurred attorney fees from these disputes, the trial court concluded that appellant could have avoided fees by having one of its employees represent it in these actions. As a result, the court dismissed the case on the ground that appellant failed to prove that it had suffered an adverse financial effect from respondents’ late payments. This appeal follows.

ISSUE

Did the trial court err in finding that appellant did not suffer an adverse financial effect in its repeated disputes with respondents?

ANALYSIS

Appellant argues that the trial court erred in finding no adverse final effect when the record shows the considerable time and expense incurred due to respondents’ repeated violations. Appellant contends that its costs above and beyond those that it can legally recover constitute an adverse financial effect. Respondents claim that the record supports the trial court’s findings because appellant recovered all those costs to which it is legally entitled and because the law permits respondents to redeem the property by paying the rent and costs due. Respondents also argue that appellant is estopped from acting on respondents’ late payments because it failed to follow through with prior threats to do so.

We review the trial court’s factual findings for clear error, but independently apply the law to those facts. Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990). The interpretation of HUD regulations is a question of law, which we review de novo. See Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d 700, 702 (Minn.1999) (independently reviewing the import of HUD regulations).

HUD regulations apply to all participants in HUD-subsidized housing programs. Chancellor Manor v. Thibodeaux, 628 N.W.2d 193, 196 (Minn.App.2001). These regulations outline the conditions under which landlords may evict tenants. Oak Glen of Edina v. Brewington, 642 N.W.2d 481, 485 (Minn.App.2002). The relevant regulation, also incorporated into respondents’ lease, permits a landlord to evict a tenant for material noncompliance with the rental agreement. 24 C.F.R. § 247.3(c) (2001). Material noncompliance is defined, in relevant part, as:

(2) Repeated minor violations of the rental agreement that:
(i) Disrupt the livability of the project,
(ii) Adversely affect the health or safety of any person or the right of any tenant to the quiet enjoyment of the leased premises and related project facilities,
(iii) Interfere with the management of the project, or
(iv) Have an adverse financial effect on the project.

Id. (emphasis added). “Minor violations” include paying rent late. Id. It is undisputed that respondents’ late payments constituted repeated minor violations.

We find no cases or other authority, including the HUD Handbook, that address the scope of “adverse financial effect” as applied to HUD housing. We briefly touched on the issue in Oak Glen. In that case, the tenant paid her rent late on 17 occasions in five years and the landlord sought to evict her under the HUD regulation set out above. Oak Glen, 642 N.W.2d at 484. We concluded that the late payments constituted repeated minor violations, but declined to address whether the late payments had an adverse financial effect warranting eviction because the parties had not presented that issue to the district court. Id. at 486. As a result, the question of whether such administrative costs amount to an “adverse financial effect” is an issue of first impression.

Plainly read, the regulation is unqualified and contains no minimum amount necessary to constitute “adverse financial effect.” Nor does the common definition of “adverse” imply a particular threshold. See The American Heritage Dictionary 26 (3d ed.1992) (defining “adverse,” in part, as “[c]ontrary to one’s interests or welfare; harmful or unfavorable”). Because there is no qualification or threshold, we interpret “adverse financial effect” to refer to all those effects that adversely impact the program. As a result, we conclude that the administrative costs resulting from preparing more than 70 late-rent and eviction notices create an adverse financial effect that is sufficient to meet the HUD standard. Several reasons compel us to adopt the plain meaning of the term.

First, this court construes words according to their common usage before resorting to interpretative devices. Minn. Stat. § 645.08(1) (2000); Lucas v. Am. Family Mut. Ins. Co., 403 N.W.2d 646, 650-51 (Minn.1987). Because this regulation can be plainly read to encompass any and all adverse financial effect, we need not employ judicial construction to discern its meaning. See Comm’r of Revenue v. Richardson, 302 N.W.2d 23, 26 (Minn.1981) (“No room for judicial construction exists when the statute speaks for itself.”).

Second, the Minnesota Supreme Court has rejected our prior attempt to read equitable standards into HUD regulations when the regulation is carefully crafted and addresses all the concerns intended. See Lor, 591 N.W.2d at 703-04. In Lor, a HUD regulation gave public-housing authorities (PHAs) discretion to develop eviction policies that protect other tenants and the greater public while permitting managers to consider individual circumstances. Id. at 702-03. When Lor’s landlord attempted to evict her for her son’s violation of its policy, the trial court examined not only whether the policy had been violated, but also whether Lor could have known about the violation and whether Lor would suffer severe hardship if evicted. Id. at 702. We agreed with the trial court that it had discretion to look beyond the issue of whether the tenant violated the landlord’s policies and consider the equitable circumstances surrounding the eviction. Id. The Minnesota Supreme Court reversed, holding that the HUD regulations plainly vest the PHAs, not the courts, with the authority to develop eviction standards. Id. at 703. The court reasoned that,

[i]n light of HUD’s careful crafting of the PHA role in eviction decisions, HUD would likely have spelled out any additional supervisory responsibilities it wished courts to take.

Id. at 704.

Likewise, the HUD eviction regulation here is detailed and thorough, and in fact defines other terms such as “drug-related criminal activity” and “material noncompliance.” See 24 C.F.R. § 247.2 (2001). Thus, we must assume that HUD would have further defined “adverse financial effect” had it intended to impose a threshold financial requirement.

Finally, the United States Supreme Court also followed the plain meaning of a HUD-related statute when it was asked to read in a qualification in Dep’t of Hous. and Urban Dev. v. Rucker, — U.S. —, —, 122 S.Ct. 1230, 1233, 152 L.Ed.2d 258 (2002). In Rucker, a tenant asked the Court to read 42 U.S.C. § 1437d(Z)(6) (1994 & Supp. V 1999), a HUD-related statute permitting eviction if any member or any guest of the tenant’s household engaged in drug-related criminal activity, to mean that grounds for eviction existed only when the tenant had knowledge of the criminal activity. Id. at — - —, 122 S.Ct. at 1232-33. The Court refused to qualify the provision with a “knowledge” requirement when Congress did not do so. Id. at —, 122 S.Ct. at 1233. Similarly, the regulation here does not qualify the meaning of “adverse financial effect” and thus we must refrain from adopting anything but the plain meaning of the language.

Because the plain reading of the regulation contains no qualification or threshold for “adverse financial effect,” the trial court erred when it failed to find that appellant’s administrative costs meet the standard. The trial court’s error is twofold. First, the trial court made no findings regarding appellant’s administrative costs, despite ample evidence of the costs incurred. Howell’s testimony regarding the time involved with filing more than 70 late-rent and eviction notices certainly satisfies any accepted meaning of “adverse financial effect.” Second, the trial court premised its holding on the belief that appellant suffered no adverse financial effect because it recovered all the costs to which the law entitles it. But the HUD regulation is concerned with the costs incurred, not merely with the costs that go uncompensated. Thus, although a landlord may recover all the costs allowed under the law, it is possible, as happened here, that a landlord will suffer costs beyond those for which the law compensates it.

We decline to address respondents’ arguments regarding redemption and es-toppel because those claims were not presented to the trial court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that courts should decline to address issues not raised in the trial court). But we note that an estoppel defense does not' apply where, as here, the landlord refuses to accept the final rent payment. See Oak Glen, 642 N.W.2d at 487 (stating that a landlord need only refuse the final payment to protect itself against a claim of waiver).

DECISION

Because the administrative costs that appellant suffered from respondents’ filing more than 70 late-rent and eviction notices constitute an “adverse financial effect,” the trial court erred in dismissing appellant’s eviction action.

Reversed and remanded.


source: Caselaw Access Project

author: HARTEN, Judge.

license: Public Domain

text:
    DISTRICT 318 SERVICE EMPLOYEES ASSOCIATION, Appellant, v. INDEPENDENT SCHOOL DISTRICT NO. 318, et al., Respondents.
    No. C5-02-438.
    Court of Appeals of Minnesota.
    Sept. 3, 2002.

      Mitchell J. Brunfelt, Colosimo, Patchin, Kearney, Lindell & Brunfelt, Ltd., Virginia, MN; and Don L. Bye, Duluth, MN, for appellant.
    Steven C. Fecker, Jessica L. Durbin, Johnson, Killen <& Seiler, P.A., Duluth, MN, for respondents.
    Considered and decided by RANDALL, Presiding Judge, HARTEN, Judge, and SHUMAKER, Judge.
   OPINION

HARTEN, Judge.

When respondent school district declined to submit to the grievance procedure an employee’s contention that she should be classified and paid as a technician rather than a technician’s assistant, appellant employees’ association moved the district court to compel arbitration. The district court denied appellant’s motion holding that the parties had no agreement to arbitrate an employee’s classification and pay. Because we see no error of law in this determination, we affirm.

FACTS

Appellant District 318 Service Employees Association (the association) and respondent Independent School District 318 (the school district) were parties to a collective bargaining agreement (CBA). The CBA provided in relevant part that

[g]rievance shall mean all allegations * * * in a dispute or disagreement * * * as to the application or interpretation of the terms and conditions of employment as found in this Agreement.
******
The arbitrator shall not have the power to add to, to subtract from, or to modify in any way the terms of the existing contract.

Jeanne Garner became a member of the association when she was hired by the school district as a technician’s assistant, a position compensated at $13.24 per hour under the CBA. Garner contended that, because she was actually performing the duties of a technician, she should be reclassified and compensated at $17.48 per hour, the rate designated for that position by the CBA. In support of this contention, Garner submitted affidavits asserting that she performed the duties of technician and alleging that she had been given an oral promise that she would be promoted to technician after acquiring the appropriate knowledge and training.

The association sought to file a grievance on Garner’s behalf. The school district declined in correspondence indicating:

No provision of the collective bargaining agreement even arguably applies to the objections and issue ⅜ ⅜ *; therefore, the School District will not submit this matter to the grievance procedure. However, we continue to be willing to discuss your concerns and try to resolve them.

The association then moved the district court for an order compelling arbitration. The district court denied the motion, and the association challenges the denial.

ISSUE

Should the school district be compelled to arbitrate?

ANALYSIS

[I]f the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.

Minn.Stat. § 572.09(a) (2000). See also Atcas v. Credit Clearing Corp., 292 Minn. 334, 341, 197 N.W.2d 448, 452 (1972) (if no agreement to arbitrate exists, either in fact or because the controversy is not within the scope of the arbitration clause, the court may protect a party from being compelled to arbitrate). The district court denied the association’s application to compel arbitration on the ground that the controversy was not within the scope of the arbitration clause. Appellate courts review a determination of arbitrability de novo. Indep. Sch. Dist. No. 88 v. Sch. Serv. Employees Union Local 284, 503 N.W.2d 104, 106 (Minn.1993).

The association is entitled to arbitrate an unresolved grievance, but a grievance is an “allegationf ] * * * as to the application or interpretation of the terms and conditions of employment as found in [the CBA]”. The CBA says nothing specific about the duties of technicians as opposed to technician’s assistants, nor does it refer to employees who perform the duties of those in a higher-paid classification. Accordingly, the terms and conditions of employment giving rise to the association’s allegation are not found in the CBA, and the parties have no agreement to arbitrate them.

The association relies on Atcas, 292 Minn. at 341, 197 N.W.2d at 452, providing that, “[i]f the intention of the parties is reasonably debatable as to the scope of the arbitration clause, the issue of arbitrability is to be initially determined by the arbitrators.” The association argues that, because the parties are debating the scope of the arbitration clause, it is ipso facto “reasonably debatable.” But that argument leads to an absurd result: simply by disagreeing with an opposing party, a party could bring any issue into the scope of the arbitration clause.

DECISION

Because the association’s allegation arose out of conditions not mentioned in the CBA, the association is not entitled to compel arbitration.

Affirmed.


author: SEVERSON, Circuit Judge.

text:
    2002 SD 93
    John J. GLUSCIC, M.D., Plaintiff and Appellant, v. AVERA ST. LUKE'S, a South Dakota Community Hospital, Defendant and Appellee.
    No. 22002.
    Supreme Court of South Dakota.
    Argued April 24, 2002.
    Decided July 31, 2002.

      Roy Wise and Chester A. Groseclose of Richardson, Groseclose, Wyly, Wise & Sauck Aberdeen, South Dakota, Richard G. Braman of Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, Minnesota, Attorneys for plaintiff and appellant.
    Edwin E. Evans and Melissa C. Hinton of Davenport, Evans, Hurwitz & Smith Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   SEVERSON, Circuit Judge.

[¶ 1.] John Gluscic, M.D. (Gluscic) appeals the circuit court’s final judgment of June 25, 2001, denying his application for a preliminary injunction and for a permanent injunction enjoining Avera St. Luke’s (ASL) from revoking his medical staff privileges. We affirm.

FACTUAL AND PROCEDURAL HISTORY

[¶ 2.] On June 26, 1997, the Board of Trustees of ASL in Aberdeen, South Dakota voted to close the medical/dental staff to new applicants for staff privileges for the performance of laminectomies, closed fractures of the spine and spinal fusions. In addition, the Board voted to close the medical/dental staff for orthopedic surgery privileges except for two orthopedic surgeons already in the recruitment process.

[¶ 3.] In 1998, nearly a year after the Board voted to close the staff, Orthopedic Surgery Specialists (OSS) recruited Dr. John Mahan (Mahan), a spine-fellowship trained orthopedic surgeon. Despite notice that the staff at ASL was closed for orthopedic surgery privileges, Mahan proceeded with his move to the Aberdeen area to join OSS. At that time, Mahan requested an application for staff privileges from ASL. ASL refused the request asserting that the staff was closed to new applicants in this area.

Mahan Litigation

[¶ 4.] In response to the refusal of his request for an application for staff privileges, Mahan and other OSS physicians commenced an action against ASL in September 1998. The plaintiffs challenged the June 1997 Board decision closing staff privileges to new orthopedic surgeons. Mahan sought a permanent injunction requiring ASL to provide an application for medical/dental staff privileges to all physicians requesting one.

[¶ 5.] On June 30, 1999, the circuit court entered a judgment granting Ma-han’s motion for a permanent injunction. The court further ordered that ASL provide applications to Mahan and any other doctor in association with OSS and that it process the applications in accordance with the standards and procedures set forth in the medical staff bylaws.

[¶ 6.] ASL appealed the circuit court’s June 30, 1999, judgment. ASL filed motions to stay the judgment which were denied. Accordingly, pursuant to the circuit court’s mandatory injunction, ASL provided an application for staff privileges to Mahan.

Dr. Gluscic’s Application

[¶ 7.] During the course of the Mahan dispute, OSS recruited another orthopedic surgeon, Dr. Gluscic, to join its practice. On July 5, 2000, Gluscic requested an application for medical/dental staff privileges from ASL. ASL provided an application to Gluscic pursuant to the circuit court’s mandatory injunction. ASL also sent a letter to Gluscic alerting him that the application was being provided pursuant to the injunction which had been appealed. The letter further advised that, “[t]o the extent that the Supreme Court modifies or reverses the trial court judgment, your application and any ensuing hospital privileges granted to you will be subject to that decision.”

[¶ 8.] On September 2, 2000, Gluscic submitted his completed application to ASL. Gluscic received temporary privileges in orthopedic surgery on November 28, 2000. At its December 2000 meeting, ASL’s Board granted privileges to Gluscic subject to the decision of the South Dakota Supreme Court to the extent that it might modify or reverse the circuit court’s June 30, 1999, judgment. Gluscic was advised in a letter from ASL that his privileges were granted pursuant to the circuit court’s June 30, 1999, judgment which had been appealed. The letter further advised Glusic that “[t]o the extent that the Supreme Court [modifies] or [reverses] the circuit court judgment, your application and any ensuing hospital privileges granted to you will be subject to that decision.”

Effect of Reversal of Injunction:

Present Controversy

[¶ 9.] On January 10, 2001, this Court issued its decision in Mahan v. Avera St. Luke's, 2001 SD 9, 621 N.W.2d 150. In that decision, this Court held that the ASL Board’s closure of the staff was reasonable, in good faith, and a valid exercise of the Board’s authority to make business decisions to meet the healthcare needs of the community. Mahan, 2001 SD 9 at ¶ 32, 621 N.W.2d at 160. Additionally, this Court determined that the staff closure did not constitute a breach of the medical/dental staff bylaws. Mahan, 2001 SD 9 at ¶ 35, 621 N.W.2d at 161. Accordingly, this Court reversed the circuit court’s June 30, 1999, judgment and also reversed the circuit court’s issuance of a permanent injunction. Id.

[¶ 10.] Pursuant to this court’s decision, the circuit court entered a final judgment on April 23, 2001. The court vacated its June 24, 1999, memorandum decision, its June 30, 1999, judgment and its permanent injunction and entered a final judgment in favor of ASL.

[¶ 11.] Following this Court’s decision in Mahan, the ASL Board approved a resolution rescinding Gluscic’s staff privileges. In response, Gluscie’s attorneys advised ASL’s counsel that Gluscic planned to apply for a temporary restraining order. Gluscic filed his verified complaint and application for a temporary restraining order, preliminary injunction and permanent injunction on April 27, 2001. Gluscic alleged that ASL’s revocation of his medical staff privileges was in violation of the medical staff bylaws.

[¶ 12.] A telephonic hearing took place on April 27, 2001, at which time the circuit court issued a temporary restraining order enjoining ASL from rescinding Gluscic’s staff privileges. The court found that the complaint and motion for temporary restraining order were “based on good cause, [and] that Dr. Gluscic will be irreparably injured if he is not permitted to practice orthopedic surgery in the defendant hospital, which is the only general hospital within ninety miles of Aberdeen, during pen-dency of this action.”

[¶ 13.] After reviewing the parties’ briefs and hearing argument, the circuit court denied Gluscic’s request for a preliminary injunction. After a final hearing on June 13, 2001, the circuit court entered its findings of fact, conclusions of law, and final judgment denying Gluscic’s application for a preliminary and permanent injunction. The court found that, pursuant to Article III, Section 2 of the medical staff bylaws, the hospital could not revoke staff privileges without cause. However, the court went on to find that the hospital had effectively been forced by issuance of the injunction to process Gluscic’s application for privileges. Accordingly, the court held that, on vacation of that injunction, the hospital could “revoke those privileges with impunity.”

[¶ 14.] On agreement of the parties, ASL’s right to withdraw Gluscic’s staff privileges is stayed until this Court issues its final decision in this matter. This is due to the potential for irreparable injury to Gluscic should his privileges be revoked. Gluscic brings this appeal of the circuit court’s denial of his application for a preliminary and permanent injunction raising the following issue: Does the vacation of the injunction allow ASL to rescind the staff privileges granted to Dr. Gluscic while the injunction was in force?

STANDARD OF REVIEW

[¶ 15.] The circuit court’s decisions on questions of law are fully reviewable by this Court with no deference to the circuit court. Davis v. Knippling, 1998 SD 31, 576 N.W.2d 525; Dinsmore v. Piper Jaffray, Inc., 1999 SD 56, ¶ 15, 593 N.W.2d 41, 45. This Court formerly reviewed documentary evidence and deposition testimony under the de novo standard. However,

SDCL 15-6-52(a), recently amended, provides that “[f]indings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous!.]” Under this standard, “[c]lear error exists only when, upon a review of all the evidence in the record, we are left with a definite and firm conviction a mistake has been made.”

Faulk v. Faulk, 2002 SD 51 ¶ 9, 644 N.W.2d 632, 634 (quoting Estate of Catron, 2001 SD 57, ¶ 11, 627 N.W.2d 175, 177 (citing Even v. City of Parker, 1999 SD 72, ¶ 9, 597 N.W.2d 670, 674)). Accordingly, any factual findings based on documentary evidence or deposition testimony will be reviewed under the clearly erroneous standard.

ANALYSIS AND DECISION

[¶ 16.] Gluscic contends that the circuit court erred when it held that the mandatory permanent injunction issued in Mahan was void ab initio because it extinguished an independent property right he held in his staff privileges. Specifically, the narrow issue on appeal is as follows:

(1) Does the vacation of the injunction allow ASL to rescind hospital privileges granted to Dr. Gluscic while the injunction was in force?

Principles of Appellate Procedure

[¶ 17.] Focusing on the relevant rules of appellate procedure, it is well-established that a “judgment reversed by a higher court is ‘without any validity, force or effect, and ought never to have existed.’ ” Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir.1991) (quoting Butler v. Eaton, 141 U.S. 240, 244, 11 S.Ct. 985, 35 L.Ed. 713 (1891)). The Wheeler Court further stated that “[t]o ‘reverse’ a judgment means to ‘overthrow, vacate, set aside, make void, annul, repeal, or revoke it.’ ” Id. (quoting Black’s Law Dictionary 1319 (6th ed 1990)).

[¶ 18.] The United States Court of Appeals for the Eighth Circuit has addressed the effects of an erroneous judgment stating that “[a] judgment vacated on appeal is of no further force and effect.” Riha v. International Tel. & Tel. Corp., 533 F.2d 1053, 1054 (8th Cir.1976)(eiting Simpson v. Motorists Mut. Ins. Co., 494 F.2d 850 (7th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 184, 42 L.Ed.2d 147 (1974)).

[¶ 19.] The United States Supreme Court has also addressed the resolution of erroneously issued judgments by stating that:

[T]he principle, long established and of general application, that a party against whom an erroneous judgment or decree has been carried into effect is entitled, in the event of a reversal, to be restored by his adversary to that which he has lost thereby. This right, so well founded in equity, has been recognized in the practice of the courts of common law from an early period....
That a course of action so clearly consistent with the principles of equity is one proper to be adopted in an equitable proceeding goes without saying. It is one of the equitable powers, inherent in every court of justice so long as it retains control of the subject-matter and of the parties, to correct that which has been wrongfully done by virtue of its process.

Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 249 U.S. 134, 145-146, 39 S.Ct. 237, 63 L.Ed. 517 (1919); See also Bank of the United States v. Bank of Washington, 6 Pet. 8, 31 U.S. 8, 8 L.Ed. 299, 304 (1832); Erwin v. Lowry, 7 How. 172, 48 U.S. 172, 12 L.Ed. 655, 660 (1849); Northwestern Fuel Co. v. Brock, 139 U.S. 216, 11 S.Ct. 523, 35 L.Ed. 151 (1891).

[¶ 20.] This Court has spoken on the issue by holding that “[t]he mandate of this court ordering a reversal of a judgment without other direction nullifies the judgment, findings of facts, and conclusions of law, and leaves the case standing as if no judgment or decree had ever been entered. Janssen v. Tusha, 67 S.D. 597, 601, 297 N.W. 119, 120 (1941)(emphasis added). See also 5 AmJur2d Appellate Review § 861 (2002) (“A complete reversal generally annuls the judgment below, and the case is put in the same posture in which it was before the judgment was entered. Thus, after the reversal on appeal, the parties’ rights are left wholly unaffected by any previous determination that was reversed, so that a judgment that is reversed and remanded stands as if no trial has yet been held.”).

[¶ 21.] Furthermore, this Court has stated that “[i]t is also clear that, upon the reversal of a judgment, the law raises an obligation on the part of the party who received benefits from its enforcement to restore those benefits to the adverse party.” Pendergast v. Muns, 59 S.D. 135, 142, 238 N.W. 344, 347 (1931).

[¶ 22.] Accordingly, although Gluscic was not a party to the Mahan lawsuit, his employer was a party and Gluscic’s application was processed pursuant to the mandatory injunction which was appealed. Gluscic was advised his privileges were subject to the decision in the Mahan litigation, but he accepted the benefits of the injunction. In the present case, the Board was ordered via injunction to process applications. Because the judgment has been reversed and the injunction vacated, the above-mentioned authority provides that it is “as if no judgment or decree had ever been entered.” Janssen, 67 S.D. at 601, 297 N.W. at 120. In order for the above language to have any effect in the present case, ASL must be allowed to rescind Gluscie’s privileges at this time. This action would put the hospital in the same position it would be in had the injunction never been issued in addition to upholding the decision in Mahan allowing the Board to make administrative business decisions such as closing staff privileges.

[¶ 23.] Our decision on this issue eliminates the need to address the other issues raised on appeal.

[¶ 24.] Affirmed.

[¶ 25.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 26.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

[¶ 27.] SEVERSON, Circuit Judge, for SABERS, Justice, disqualified.


author: PER CURIAM.

text:
    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 Strat-meyer 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 Strat-meyer (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 Eng-berg 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. 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.

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. Eng-berg 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). Since Engberg has not proven that the action was frivolous, she has not shown an abuse of the trial court’s discretion.

[¶ 19.] 2. WHETHER ENGBERG HAS PROVEN THAT STRATMEYER’S CLAIM WAS BROUGHT FOR MALICIOUS PURPOSES.

[¶ 20.] Under the same statute quoted above, this Court has held that an action is malicious if it “ ‘is begun in malice, and without probable cause to believe it can succeed, and which finally ends in failure.’ ” Michlitsch v. Meyer, 1999 SD 69, ¶ 19, 594 N.W.2d 731, 735 (quoting Specialty Mills v. Citizens State Bank, 1997 SD 7, ¶ 9, 558 N.W.2d 617, 620) (citation omitted)).

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.

Manuel v. Wilka, 2000 SD 61, ¶ 39, 610 N.W.2d 458, 465 (internal citations omitted).

[¶ 21.] This is a closer question. The brief record before this Court indicates a history of hostility or ill will between the family members. Besides the obvious difficulties within a family where sexual molestation of children occurs by a family member, when these allegations first arose in this family, Frances sided with Gary against her other children and grandchildren and refused to believe he was guilty. However, the trial court found the lawsuit was not instituted for an improper purpose. This is supported by testimony at the hearing. Although an order was not produced, Stratmeyer and his second attorney were under the impression that the judge had issued a protection order, or at least admonished the parties to stay away from one another. Engberg and Richard failed to do so and the actions complained of in the assault and IIED lawsuit occurred after the no contact order was presumed by Stratmeyer to be filed. Stratmeyer testified that, by filing this lawsuit, he was using the judicial system to end the ongoing harassment and only dismissed the action after Richard’s suicide.

[¶ 22.] It is not this Court’s role to re-examine a trial court’s credibility determination as the trial court, having the witnesses before it, is in the best position to make this determination. Mash v. Cutler, 488 N.W.2d 642, 653-54 (S.D.1992) (“[Determining the credibility of the witnesses is the role of the factfinder. Where the trial court has resolved conflicts in evidence, we cannot change its findings.”). Moreover, “the trial court, as well as this Court on appeal, must view the evidence in a light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the evidence.” Denke v. Mamola, 437 N.W.2d 205, 207 (S.D.1989) (citing Carlson v. First Nat’l Bank, 429 N.W.2d 463, 466 (S.D.1988) (additional citations omitted)).

[¶ 23.] The trial court found that when Stratmeyer filed his lawsuit, he had a reasonable belief he would prevail, thus supporting a finding that the suit was not filed for an unjustifiable motive. “ ‘Any doubt about whether or not a legal position is frivolous or taken in bad faith must be resolved in favor of the party whose legal position is in question.’ ” Ridley, 2000 SD 143 at ¶ 15, 619 N.W.2d at 260 (citation omitted). Engberg has failed to show that the action was brought for a malicious purpose or that the trial court abused its discretion.

[¶ 24.] 3. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING EXCUSABLE NEGLECT FOR STRATMEYER’S FAILURE TO OBJECT TO THE APPLICATION FOR COSTS AND FEES.

[¶ 25.] Though Engberg refers to this as relief from a default judgment, no default judgment was ever entered in this case. See SDCL 15-6-55(a) & (b) (defining and outlining procedure for default judgment). Here, the court found excusable neglect for Stratmeyer’s failure to object within the 10-day statutory time limit to Engberg’s application for costs and fees as required by SDCL 15-6-54(d). Stratmeyer’s objection was filed the same day as the court’s judgment awarding costs and fees. Stratmeyer filed a motion to set aside this judgment and the court granted relief under SDCL 15 — 6—60(b)(1) which provides “[u]pon motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for ... (l)[m]istake, inadvertence, surprise or excusable neglect.”

[¶ 26.] The initial award of costs and attorney fees was based on Engberg’s claim that the lawsuit was frivolous or malicious under SDCL 15-17-51. This Court has previously held that where the trial court fails to enter findings as to the frivolity or maliciousness of an action, the case must be remanded for entry of such findings and conclusions before a determination can be made on the issue of attorney fees. Michlitsch, 1999 SD 69 at ¶ 20, 594 N.W.2d at 735 (“[W]hen a trial court is ruling on the application for attorney fees, it must, for meaningful appellate review, enter findings of fact and conclusions of law”). Here, the initial award was made without a hearing and without findings and conclusions from the trial court. Upon objection from Stratmeyer and his subsequent motion to set aside, the trial court reconsidered the issue under SDCL 15-17-51. This time, the court held a hearing, received testimony, and entered findings and conclusions to support its decision to deny attorney fees and to award costs only. The proper procedure was followed.

[¶ 27.] Both mistake and inadvertence were present even if excusable neglect was not. The trial court’s decision to reconsider its judgment should not be reversed when it failed to follow proper procedure in the first instance and its final judgment corrected that error. Engberg has failed to show that the trial court erred.

[¶ 28.] 4. WHETHER ENGBERG SHOULD BE AWARDED APPELLATE ATTORNEY FEES.

[¶ 29.] Engberg requests reasonable attorney fees in bringing this appeal. Appellate attorney fees are only awarded where provided by statute and upon motion, where an itemized statement of fees has been presented to this Court for consideration. Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985). Engberg has not cited to any statutory authority for an award of appellate attorney fees and has failed to file a motion or itemized statement with this Court. Therefore, we deny.

[¶ 30.] Affirmed.

[¶ 31.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, KONENKAMP, and, ZINTER, Justices, participating.

      . In fact, the statute, SDCL 15-17-51, permits attorney fees to be awarded if the action is dismissed and determined to be either frivolous or brought for malicious purposes; if one is proven, the other need not be.

      .In her brief, Engberg defines the issues as follows:
      1. Under SDCL 15-17-51, is an action frivolous if there is no evidence, other than the plaintiffs’ assertion, to support the allegations contained in the complaint?
      2. Under SDCL 15-17-51, is an action malicious if there is no evidence, other than the plaintiffs’ statement, to support the allegations contained in the complaint, and there is a factual history on which a conclusion of malice can be based?
      3. May a Circuit Court grant relief from a default judgment on the basis of excusable neglect when there is no supporting evidence of excusable neglect?
      4. Appellate Attorney Fees

      . 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 and that 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.