Schaefer Ex Rel. S.S. v. Liechti

#23670-a-SLZ

2006 SD 19

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

CINDY SCHAEFER, on behalf
of S.S., C.S., and K.S.,

and

ELDA SCHELLER, on behalf of
D.S., Petitioners and Appellees,

v.

EDWARD LIECHTI, JR., Respondent and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
FAULK COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LARRY H. LOVRIEN
Judge

* * * *

ROSE ANNE WENDELL Attorney for petitioners
Pierre, South Dakota and appellees.

H. I. KING of
Tonner, Tobin and King Attorneys for respondent
Aberdeen, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON JANUARY 9, 2006

OPINION FILED 03/01/06
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ZINTER, Justice

[¶1.] William Edward Liechti appeals the circuit court’s entry of a stalking

protection order. Both parties seek appellate attorney’s fees. We affirm the circuit

court’s entry of the protection order and deny both parties’ requests for appellate

attorney’s fees.

Facts and Procedural History

[¶2.] Doug and Cindy Schaefer (the Schaefer parents) are the parents of

S.S., C.S., and K.S., who were fifteen, thirteen, and eleven in the summer of 2004.

The Schaefers lived on the edge of Seneca, South Dakota, and operated a farming

business. Elda Scheller (Scheller) is the grandmother and guardian of D.S., who

was seventeen in the summer of 2004. The Schellers also lived in Seneca. D.S. and

the Schaefer children (collectively referred to as the children) are friends.

[¶3.] These children drove “four-wheelers,” also known as ATV’s, which were

not licensed. The children also drove the four-wheelers without driver’s licenses;

however, D.S. and S.S. eventually obtained their licenses. D.S. used his four-

wheeler to take care of horses on the edge of town, and he obtained “permission”

from the Mayor of Seneca and the Faulk County Sheriff to drive on a prescribed

route. The Schaefer children also received “permission” to drive their four-wheeler

on a prescribed route to their property.

[¶4.] William Edward Liechti, Jr., a resident of Seneca since 1971, lived

approximately two and a half blocks from the Schaefers. He owned and operated a

vehicle repair business until he sold it in 2002. From approximately 2000 to 2004,

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Liechti had numerous confrontations with the children regarding their operation of

the four-wheelers in the city and on the highway.

[¶5.] The confrontations escalated in the summer of 2004. Two of the

confrontations caused the Schaefer parents and Scheller to seek stalking protection

orders against Liechti. The first incident occurred in July when C.S. and S.S. drove

a four-wheeler into town to pick up a friend. On their way back to the Schaefer

house, Liechti observed the children. When Liechti stopped his pickup, the children

drove behind him and into a school lot. Liechti backed up and followed them. In

order to get away from Liechti, the children had to drive their four-wheeler into a

nearby wheat field.

[¶6.] The second incident occurred in August when Liechti contacted

Timothy Bormann, the Faulk County State’s Attorney. Liechti reported that he had

observed the children racing and “tearing around” Seneca on four-wheelers and

motorcycles. Bormann informed Liechti that he would have to file a complaint with

the Sheriff’s office. Liechti filed a complaint, but upon investigation, it was

determined that Liechti could not have observed what he alleged. Therefore, the

Sheriff and Bormann agreed that Liechti’s complaint would not be prosecuted.

Bormann testified that when Liechti was told they were not going to prosecute,

Liechti “made a comment to the effect of, if this was all the help I was going to get, I

could have just as well gotten a shotgun and taken care of it myself.”

[¶7.] Based on these and numerous other incidents, the Schaefer parents

and Scheller filed for a protection order on behalf of the children. A temporary

stalking order was entered against Liechti on August 27, 2004. Following a trial,

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the court entered a permanent order of protection against stalking or physical

injury. On appeal we are asked to determine the following issues:

1) Whether the court’s findings of fact were clearly
erroneous;

2) Whether the trial court erred in determining that Liechti
stalked the children, which raises the following sub-
issues:
a) Whether Liechti’s conduct amounted to a series of
acts that established a course of conduct;
b) Whether Liechti’s actions were undertaken for a
legitimate purpose;
c) Whether Liechti’s actions were performed
maliciously;
d) Whether Liechti’s actions constituted a credible
threat that placed the children in reasonable fear of great
bodily injury;

3) Whether either party is entitled to appellate attorney’s
fees.

Standard of Review

[¶8.] 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.” Goeden v. Daum, 2003 SD 91, ¶5, 668 NW2d 108, 110 (citation

omitted). First, we determine whether “the trial court’s findings of fact were clearly

erroneous.” Id. (citation omitted). 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.’” People ex rel. O.S., 2005 SD 86, ¶9, 701

NW2d 421, 425 (quoting In re T.A., 2003 SD 56, ¶5, 663 NW2d 225, 229 (citing

Matter of A.M., 292 NW2d 103, 105 (SD 1980))). Furthermore, “[t]he credibility of

the witnesses, the import to be accorded their testimony, and the weight of the

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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.” Baun v.

Estate of Kramlich, 2003 SD 89, ¶21, 667 NW2d 672, 677 (citation omitted). 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.” Goeden, 2003 SD 91, ¶5, 688 NW2d at 110 (citation omitted).

Analysis and Decision

1) Were the trial court’s findings of fact clearly erroneous?

[¶9.] Throughout his briefs, Liechti disagrees with many of the trial court’s

findings of fact. For example, Liechti contends that, contrary to the trial court’s

findings: 1) he did not watch S.S. with binoculars while she was swimming; 2) he

only used his binoculars to watch the children playing in their tree house on one

occasion; 3) he did not attempt to stop the Schaefer children on numerous occasions;

4) he did observe the racing that he reported to law enforcement; and 5) he did not

say anything about a shotgun after learning that charges would not be brought

against the children. However, the evidence presented at trial supported the trial

court’s contrary findings.

[¶10.] Most of the evidence presented at the trial was live witness

testimony. The record reflects that while Liechti said one thing, the children, the

Schaefer parents, Scheller, and State’s Attorney Bormann said another.1 Therefore,

1. For example, Liechti disagreed with State’s Attorney Bormann’s testimony
regarding the August racing incident. Liechti contended that he could
identify the drivers and the vehicles, that he was never told the children
would not be prosecuted, that he made the decision not to prosecute the
(continued . . .)
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the trial court’s credibility determination played a crucial role in the resolution of

these factual disputes. Ultimately, the trial court made specific findings that

Liechti was not credible and that the children, the Schaefer parents, and Scheller

were credible.2 Because we give due regard to the trial court’s opportunity to

observe witnesses and judge their credibility, and because the trial court expressly

found that Liechti was not credible, we conclude that the trial court was not clearly

erroneous in accepting the children’s, the Schaefer parents’, and Scheller’s version

of the facts.

_________________________
(. . . continued)
children, and that he never mentioned anything about a shotgun. On the
other hand, Bormann testified that Liechti’s complaint alleged that there
were some four-wheelers and a motorcycle “tearing” around the town and
that S.S. was driving the motorcycle. Upon further investigation, it was
discovered that the motorcycle Liechti identified was disassembled and not
operational at the time of the alleged incident. Furthermore, Bormann
testified that it was his impression Liechti had not actually seen the incident
and that he told Liechti not to move forward with the complaint at that time.
Bormann stated that after he advised Liechti not to move forward with the
complaint, Liechti made a comment to the effect that “if this was all the help
I was going to get, I could have just as well gotten a shotgun and taken care
of it myself.”

Liechti also argued at trial and contends in his brief that he has only talked
to S.S. two times in the last two years. However, three pages later in the
same brief, Liechti admits that he has “confronted S.S. [on] numerous
occasions because S.S., on numerous occasions, [had been] disturbing the
peace . . . and violating the law.”

2. The trial court’s findings of fact indicate that:
12. Liechti’s testimony, including his denial of many of the events
testified to by the Petitioners, is not credible.
13. The testimony of the minor children, the Schaefer parents and
Elda Scheller is credible and is corroborated by other testimony,
including the testimony of State’s Attorney Timothy Bormann.

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2) Whether the trial court erred in determining that Liechti stalked the children.

[¶11.] Liechti contends that the trial court erred in determining that his

conduct amounted to stalking. SDCL 22-19A-1 defines stalking as:

Any person:
(1) Who willfully, maliciously, and repeatedly follows or
harasses another person;
(2) Who makes a credible threat to another person with
the intent to place that person in reasonable fear of death
or great bodily injury; or
(3) Who willfully, maliciously, and repeatedly harasses
another person by means of any verbal, electronic, digital
media, mechanical, telegraphic, or written
communication; is guilty of the crime of stalking.

This case involves harassment under SDCL 22-19A-1(1) and a credible threat under

SDCL 22-19A-1(2). Harass “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.” SDCL 22-19A-4. “Course of conduct” is “a

pattern of conduct composed of a series of acts over a period of time, however short,

evidencing a continuity of purpose.” SDCL 22-19A-5. A “credible threat” is “a

threat made with the intent and the apparent ability to carry out the threat.”

SDCL 22-19A-6.

[¶12.] Liechti argues that his conduct did not amount to “harassment” under

SDCL 22-19A-1(1) because: 1) his actions did not comprise a series of acts that

established a course of conduct and 2) he acted for a legitimate purpose. Liechti

further argues that his conduct did not constitute stalking under SDCL 22-19A-1(1)

because his actions were not performed maliciously. Finally, Liechti argues that he

did not make credible threats that placed the children in reasonable fear of great

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bodily injury as required under SDCL 22-19A-1(2). However, the evidence does not

support Liechti’s contentions.

Course of Conduct

[¶13.] Notwithstanding Liechti’s contention, his actions established a course

of conduct. Liechti admitted that he watched C.S. and the other children through

his binoculars while they were playing in a tree house on one occasion. However,

Liechti actually “watched” C.S. and the other children on many occasions. C.S.

testified that Liechti would “always watch us.” C.S. further revealed that Liechti

would watch her and her friends with his binoculars while they were playing in a

tree house and while they were swimming at a friend’s house. She indicated that

Liechti has watched her “too many” times and that she was scared to go into town

alone because of him. The record also reflects that Liechti chased C.S. and S.S. into

the wheat field in July 2004, and made, what the sheriff and state’s attorney

believed to be, a false complaint that S.S. was tearing around town and racing on a

motorcycle in August 2004. While testifying, Liechti also admitted that he chased

S.S. to his home on a separate occasion in 2000 or 2001.3 Finally, Liechti admitted

in his briefs that he confronted S.S. on “numerous occasions.”

[¶14.] Liechti also engaged in a course of conduct with D.S. On one occasion,

Liechti approached D.S. and told him that he was trespassing despite the fact D.S.

3. The following excerpt of Liechti’s testimony displays his inadvertent
admission to chasing S.S. on an occasion prior to the incident in July 2004:
Q. Have you ever chased or followed these Schaefer kids around?
A. Just young [S.S.] that one time up to his place.
Q. Well, let’s talk about that. That would be July of last year?
A. Oh, no. That was three years ago or more.

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was on Scheller’s private property. Liechti also followed D.S. while he was driving

his four-wheeler and stopped him to discuss various traffic violations. Further, D.S.

testified that he observed Liechti watching him with binoculars while D.S. was

driving his four-wheeler.

[¶15.] The Schaefer parents and Scheller corroborated and amplified the

children’s course of conduct testimony. Doug Schaefer described Liechti’s conduct

as “canvassing” the children. He also described one series of events when Liechti

drove by the Schaefer home thirty-five times in one day. Similarly, Elda Scheller

testified that Liechti followed D.S. “often enough to concern [her] ” and that at one

point, Liechti would call Scheller four to five times a day to discuss D.S.’s various

faults. Considering all the evidence, we agree that Liechti engaged in a course of

conduct toward the children.

Legitimate Purpose

[¶16.] Liechti, however, points out that the definition of “harass” also

requires that the offending conduct serve no legitimate purpose. Liechti argues that

his conduct served a legitimate purpose because he was concerned about the

children driving four-wheelers in violation of the law. However, we believe that

even if the children had violated the law, Liechti’s surveillance of the children

through binoculars while they were swimming, while they were in a tree house, and

on other occasions was not related to his purported concern of ensuring compliance

with South Dakota’s motor vehicle laws. Moreover, he had no right to assume the

role of law enforcement and create dangerous situations by chasing the children in

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his pickup. Rather, Liechti’s remedy was to take his concerns and complaints to the

police or other public officials responsible for enforcement of the law.

Malice

[¶17.] Liechti contends that even if his actions did amount to a “course of

conduct,” they were not performed maliciously.4 SDCL 22-1-2 defines maliciously

as “a wish to intentionally vex, annoy, or injure another person, established either

by proof or presumption of law.” SDCL 22-1-2(1)(a). Considering Liechti’s

previously described conduct of “canvassing” the children, watching them through

binoculars, driving by the Schaefer home thirty-five times in one day, confronting

the children on numerous occasions, chasing them into a wheat field, and filing

false complaints, we conclude that the trial court could have found that Liechti

intentionally engaged in vexatious and annoying conduct.

Credible Threats

[¶18.] Liechti argues that the trial court erred in finding that he made

credible threats to the children that placed them in reasonable fear of great bodily

injury. Once again, however, the testimony of the children, the Schaefer parents,

and Scheller supports the trial court’s findings. The record reflects that Liechti

repeatedly followed the children in his pickup while they were driving their four-

wheelers. This conduct created a dangerous situation that put the children in fear

4. Liechti uses the Black’s Law Dictionary’s definition of malicious. Black’s Law
Dictionary (1990) defines “malicious” as “having, or done with, wicked, evil or
mischievous intentions or motives; wrongful and done intentionally without
just cause or excuse or as a result of ill will.” However, SDCL 22-1-2 provides
the definitions for Title 22. Therefore, we must apply the definition of malice
found in SDCL 22-1-2(1)(a).

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of great bodily injury as was demonstrated by the Schaefer children having to take

evasive maneuvers through a wheat field. More significantly, Liechti stated that he

should have used a shotgun to solve his problem with the children. Although this

statement was initially made to the sheriff and state’s attorney, the sheriff believed

the threat was credible enough to inform the Schaefers and Scheller of the

comment. Furthermore, they were aware that Liechti owned firearms. Thus,

Liechti’s conduct as well as the Schaefers’, Scheller’s, and the children’s knowledge

of Liechti’s threatening statement was sufficient to establish a legitimate concern

about the children’s physical safety. Therefore, we affirm the trial court’s finding

that Liechti made credible threats that placed the petitioners in reasonable fear of

great bodily injury.

[¶19.] Because Liechti’s harassment amounted to a course of conduct, and

because those actions were preformed maliciously and constituted credible threats,

the trial court did not abuse its discretion in concluding that Liechti violated SDCL

22-19A-1(1) and (2). For the same reasons, we conclude that the trial court did not

abuse its discretion in granting the protection order against stalking or personal

injury.

3) Appellate Attorney’s Fees

[¶20.] Schaefers and Scheller moved for appellate attorney’s fees pursuant to

SDCL 15-26A-87.3. “SDCL 15-26A-87.3 permits an award of appellate attorney fees

if they are otherwise allowable and if they are accompanied by a verified, itemized

statement of the legal services rendered.” In re Writ of Certiorari as to Wrongful

Payments of Attorney Fees Made by Brookings Sch. Dist. Sch. Bd., 2003 SD 101,

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¶25, 668 NW2d 538, 547. Schaefers and Scheller contend that they may be entitled

to attorney’s fees after this Court considers the “property owned by each party, their

relative income, the liquidity of the assets and whether either party unreasonably

increased the time spent on the case.” However, Schaefers’ and Scheller’s argument

is an attempt to obtain attorney’s fees under the balancing test used “[t]o determine

whether attorney fees are proper in domestic relation cases.” Dejong v. Dejong,

2003 SD 77, ¶30, 666 NW2d 464, 471. Because Schaefers and Scheller have failed

to cite applicable authority entitling them to attorney’s fees under the stalking

statutes, their request is denied. See Hentz v. City of Spearfish, 2002 SD 74, ¶13,

648 NW2d 338, 342 (denying appellate attorney’s fees for failure to provide

statutory authority). Because Liechti has failed to prevail on his appeal, his motion

is also denied.

[¶21.] Affirmed.

[¶22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

MEIERHENRY, Justices, concur.

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