Stahl v. POLLMAN

#23739-a-PER CURIAM
2006 SD 51

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

DANIEL STAHL AND MELVIN STAHL, Plaintiffs and Appellees,

v.

JOSEPH A. POLLMAN a/k/a JOSEPH
WOLLMAN a/k/a JOSEPH POLLMAN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
McCOOK COUNTY, SOUTH DAKOTA

* * * *

HONORABLE RONALD K. MILLER
Judge

* * * *

MICHAEL E. UNKE Attorney for plaintiffs
Salem, South Dakota and appellees.

ANGELA M. COLBATH Attorney for defendant
Rapid City, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON MAY 23, 2006

OPINION FILED 06/14/06
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PER CURIAM

[¶1.] Joseph Pollman appeals the denial of his motion to vacate a permanent

injunction. We affirm.

FACTS

[¶2.] Pollman, Daniel Stahl and Melvin Stahl are from rural McCook

County and own tracts of property that are close to one another. Daniel Stahl and

Melvin Stahl are brothers and Daniel's wife is a sister to Pollman's wife. At some

point in time, severe acrimony developed between Pollman and the Stahls. The

record suggests that one of the causes was the Stahls' purchase of some land

formerly owned by Pollman at a bankruptcy sale.

[¶3.] Starting in 1993 and continuing through 1994, Pollman began

engaging in a series of bizarre, harassing, and intimidating acts directed at the

Stahls. He appeared at their residences and demanded money from them. He also

threatened suicide and cried uncontrollably, causing the Stahls' wives and children

to fear his actions. On another occasion, Pollman sat behind Daniel Stahl during a

church service. Pollman was not a member of the church and Daniel later learned

that Pollman had tried to make arrangements with an usher to sit directly behind

Daniel during the service. In another incident, Pollman drove his tractor to Melvin

Stahl's residence late at night and used it to tear large holes in the driveway. As a

result, Melvin had to use his loader to repair the damage and make the driveway

useable.

[¶4.] Pollman repeatedly trespassed upon the land the Stahls had

purchased at the bankruptcy sale and continued to take property that did not

belong to him from that land. Pollman also made a number of harassing and
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annoying telephone calls to the Stahls' residences. Among the more bizarre

incidents, Pollman took a bull from Melvin Stahl's property in mid-1993, kept it

hidden for six months and then returned it at midnight on January 2, 1994.

Pollman also shot and killed Melvin's family dog and bragged to others that he had

lured the dog away so that he could kill it.

[¶5.] Numerous incidents of the foregoing nature distressed the Stahls and

led them to commence injunction proceedings against Pollman in October 1994. As

part of the injunction action, the Stahls obtained a temporary restraining order

limiting Pollman's contact with them. Even before the hearing on the injunction,

allegations were raised that Pollman had violated the restraining order. The

hearing on the injunction was held on December 12, 1994 and, on January 5, 1995,

the trial court entered a permanent injunction forbidding Pollman from having any

contact with the Stahls, from going upon their property and from going within 600

feet of any location where the Stahls or any of their immediate family members

might be located.

[¶6.] The Stahls' injunction had little effect on Pollman. His continued acts

of harassment led to numerous allegations of violation of the injunction, contempt

proceedings, additional hearings and even more stringent court orders amending

the injunction. A judgment of civil contempt was entered against Pollman in

November 1995. Criminal proceedings were also initiated against Pollman. One of

these resulted in our decision in State v. Pollman, 1997 SD 36, 562 NW2d 105, an

appeal of a stalking conviction arising from a 1995 incident in which Pollman drove

his tractor into Melvin Stahl's pickup while they were both traveling on a narrow

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gravel road. Pollman's conviction and suspended sentence of eighteen months in

the penitentiary were affirmed by this Court.

[¶7.] Additional criminal prosecutions were commenced as a result of

Pollman's ongoing activities involving the Stahls and Pollman was again convicted

for stalking Melvin Stahl in 2003. He was sentenced to eighteen months in the

penitentiary. A few days after his release by the Department of Corrections in

2005, Pollman filed a motion to vacate the Stahls' permanent injunction against

him. The motion was denied and Pollman now appeals to this Court.

ISSUE

[¶8.] Did the trial court abuse its discretion in denying Pollman's
motion to vacate the injunction?

[¶9.] This Court does not disturb a ruling concerning injunctive relief unless

it finds an abuse of discretion. Hendrickson v. Wagners, Inc., 1999 SD 74, ¶ 14, 598

NW2d 507, 510 – 11 (quoting Knodel v. Kassel Township, 1998 SD 73, ¶ 6, 581

NW2d 504, 506). The abuse of discretion standard of review extends to rulings

concerning the dissolution or continuance of an injunction. See Clark v. City of

Deadwood, 22 SD 233, 237, 117 NW 131, 133 (1908). "An abuse of discretion can

simply be an error of law or it might denote a discretion exercised to an unjustified

purpose, against reason and evidence." Hendrickson, supra.

[¶10.] Pollman argues that the trial court erred as a matter of law in denying

his motion to vacate the injunction against him because the injunction is, in reality,

a stalking protection order under SDCL ch 22-19A and such orders are limited to a

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three year duration by SDCL 22-19A-11. 1 Since the injunction was entered in 1995,

Pollman argues that the trial court should have vacated it in 2005 for violation of

the three year limitation.

[¶11.] Contrary to Pollman's assertions, the Stahls did not obtain a stalking

protection order pursuant to SDCL ch 22-19A. Rather they obtained an injunction

in an action pursuant to SDCL ch 21-8. It would have been impossible for the

Stahls to obtain a stalking protection order in 1995 because the provisions for such

orders were not enacted until 1997. See 1997 SDSessL ch 131. Even when enacted,

the stalking provisions included the qualification that "[a]ny proceeding under §§

22-19A-8 to 22-19A-16, inclusive, is in addition to other civil or criminal remedies."

SDCL 22-19A-16 (emphasis added). Thus, it was clearly not the Legislature's

intention to displace other remedies, such as injunctive relief, with the provisions

for stalking protection orders.

[¶12.] Few authorities have analyzed whether the enactment of provisions for

stalking protection orders precludes or limits the availability of other injunctive

relief. Similar questions have been addressed, however, in the context of domestic

abuse statutes. In Capps v. Capps, 715 SW2d 547 (MoCtApp 1986), a wife filed for

divorce and, during the pendency of the action, obtained a series of protection orders

under Missouri's Adult Abuse Act. Her husband appealed arguing that the trial

court erred in granting relief under the Adult Abuse Act because his wife could have

obtained the relief she wanted in the divorce action. The Missouri court disagreed

1. SDCL 22-19A-11 provides in pertinent part: "Any relief granted by the order
for protection shall be for a fixed period and may not exceed three years."
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holding that the Adult Abuse Act provided a remedy regardless of whether the

parties could obtain relief in another action. In reaching its decision, the court

specifically noted language in the Adult Abuse Act making its remedies cumulative

to other available civil or criminal remedies.

[¶13.] In Thomas v. Thomas, 540 NE2d 745 (OhioCtApp 1988), a wife being

sued for divorce sought a civil protection order which was denied because of the

preexisting divorce action. The Ohio court reversed holding that "the mere filing of

an action for divorce is not a basis on which to deny a civil protection order." Id. at

746. In reaching its decision, the court outlined the different purposes of protection

orders and divorce provisions and noted language in the protection order statutes

making their remedies cumulative to other available civil or criminal remedies.

[¶14.] Domestic abuse statutes such as those considered in Capps and

Thomas are enacted, "to provide an efficient remedy for victims of abuse as an

alternative to other available legal remedies such as criminal charges, tort claims,

or divorce which victims are sometimes reluctant, unable or unwilling to use."

State v. Errington, 310 NW2d 681, 682 (Minn 1981). Much the same is true with

regard to stalking statutes such as those under consideration here. They are

intended to provide victims of stalking with efficient remedies as alternatives to

other available remedies such as an action for injunctive relief. Many stalking

victims might be unwilling or even unable to go through the time, effort and

expense of obtaining counsel and pursuing a full-blown action for an injunction.

Stalking protection orders offer victims an economical and expedient alternative by

making standardized petition forms and instructions for their use available in the

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various clerks of courts offices. See SDCL 22-19A-8. As with domestic abuse

statutes, however, the availability of such an alternative does not displace the other

civil or criminal remedies available to victims, particularly where the statutory

scheme specifically provides that the new remedy is cumulative.

[¶15.] Because the stalking statutes provide remedies that are cumulative to

other available remedies and do not replace those remedies, we hold that the

enactment of the stalking statutes in 1997 did not turn the Stahls' permanent

injunction against Pollman into a stalking protection order governed by the three

year limitation period in SDCL 22-19A-11. For that reason, the trial court did not

abuse its discretion in denying Pollman's motion to vacate the Stahls' injunction for

violation of the three year period.

[¶16.] Affirmed.

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

MEIERHENRY, Justices, participating.

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