Rotenberger v. Burghduff, No. 24097.

CourtSupreme Court of South Dakota
Writing for the CourtSabers
Citation2007 SD 7,727 N.W.2d 291
PartiesWilliam ROTENBERGER, Plaintiff and Appellee, v. Lex BURGHDUFF, Defendant and Appellant.
Decision Date10 January 2007
Docket NumberNo. 24097.
727 N.W.2d 291
2007 SD 7
William ROTENBERGER, Plaintiff and Appellee,
v.
Lex BURGHDUFF, Defendant and Appellant.
No. 24097.
Supreme Court of South Dakota.
Considered on Briefs on November 27, 2006.
Decided January 10, 2007.

[727 N.W.2d 292]

Roger A. Tellinghuisen of Tellinghuisen & Gordon, P.C. Spearfish, South Dakota, Attorneys for plaintiff and appellee.

Robert M. Nash of Wilson, Olson & Nash, P.C., Rapid City, South Dakota, Attorneys for defendant and appellant.

SABERS, Justice.


[¶ 1.] After the circuit court dismissed William Rotenberger's (Rotenberger) action against Lex Burghduff (Burghduff) for lack of prosecution, Rotenberger brought the same action thirteen months later. Burghduff alleged the action was barred by res judicata and collateral estoppel. Rotenberger proceeded to bring a motion to vacate the order of dismissal, which the circuit court granted. The circuit court also entered an order of dismissal nunc pro tunc that made the dismissal for lack of prosecution without prejudice. Burghduff appeals three issues. We affirm.

FACTS

[¶ 2.] On July 31, 2003, Rotenberger commenced an action against Burghduff for a prescriptive easement. Rotenberger requested a declaration that he was entitled to a prescriptive easement and an injunction prohibiting Burghduff from preventing Rotenberger's access to the trail. Burghduff filed his answer to the complaint on September 9, 2003.

[¶ 3.] For more than one year there was no action on the file. On February 4, 2005, the circuit court judge sent a letter to the attorneys for Burghduff and Rotenberger asking about dismissing the action for lack of prosecution under SDCL 15-11-11. The letter indicates the attorneys were to reply back by March 1, 2005. The record does not indicate if either party responded to the circuit court's request. Accordingly, the circuit court dismissed the action pursuant to SDCL 15-11-11 on February 23, 2005. The record shows that the scheduling clerk sent the order of dismissal

727 N.W.2d 293

to the attorneys for both Burghduff and Rotenberger.

[¶ 4.] On July 18, 2005, Rotenberger commenced an identical action against Burghduff.1 Burghduff answered the complaint using the same defenses he used in the previous action. He also alleged this action was barred by res judicata and estoppel because the previous action had been dismissed by the circuit court. Eventually, the circuit court entered an order in favor of Rotenberger on the prescriptive easement and permanent injunction and Burghduff appealed. See Rotenberger v. Burghduff, No. 24143, pending.

[¶ 5.] On March 9, 2006, Rotenberger moved to vacate the February 2005 order of dismissal for lack of prosecution. A hearing was held in front of the circuit court. On March 16, 2006, the circuit court vacated the order of dismissal and entered an order of dismissal nunc pro tunc, which made the original dismissal without prejudice.

[¶ 6.] Burghduff appeals and raises the following issues:

1. Whether the circuit court abused its discretion in vacating the February 23, 2005 dismissal where Rotenberger made no showing of exceptional circumstances under SDCL 15-6-60(b).

2. Whether the motion to vacate the order of dismissal should have been granted when it was brought more than a year after the notice of entry of judgment.

3. Whether the dismissal of the action for lack of prosecution under SDCL under SDCL 15-11-112 and/or SDCL 15-6-41(b)3 is a dismissal with prejudice.

STANDARD OF REVIEW

[¶ 7.] "A trial court's dismissal for failure to prosecute is reviewed under an abuse of discretion standard." Jenco, Inc. v. United Fire Group, 2003 SD 79, ¶ 7, 666 N.W.2d 763, 765 (citing Devitt v. Hayes, 1996 SD 71, ¶ 7, 551 N.W.2d 298, 300). In reviewing for abuse of discretion we determine "whether we believe a judicial

727 N.W.2d 294

mind, in view of the law and the circumstances, could reasonably have reached that conclusion." Huber v. Dep't of Pub. Safety, 2006 SD 96, ¶ 22, 724 N.W.2d 175, 180 (citing Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991)). Likewise, "[t]he decision to grant or deny a motion under SDCL 15-6-60(b) rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion." Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 N.W.2d 638, 641 (citing Porter v. Porter, 1996 SD 6, ¶ 4, 542 N.W.2d 448, 449) (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)).4

[¶ 8.] Whether a dismissal under SDCL results in a dismissal with or without prejudice presents a question of statutory interpretation and application. As we have previously noted:

Statutory interpretation and application are questions of law, and are reviewed by this Court under the de novo standard of review. Statutes are to be construed to give effect to each statute and so as to have them exist in harmony. It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute.

State v. $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94 (additional and internal citations omitted). "We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject." Chapman v. Chapman, 2006 SD 36, ¶ 11, 713 N.W.2d 572, 576 (additional citations omitted).

[¶ 9.] We examine Issue 3 first, whether a dismissal under SDCL 15-11-11 is with or without prejudice, as it is determinative.

[¶ 10.] Whether the dismissal of the action for lack of prosecution under SDCL 15-11-11 is a dismissal with prejudice.5

[¶ 11.] Burghduff claims that the February 23, 2005 order of dismissal for lack of prosecution was a final...

To continue reading

Request your trial
14 practice notes
  • Eischen v. Wayne Tp., No. 24438.
    • United States
    • Supreme Court of South Dakota
    • January 2, 2008
    ...is mandated by the statute. SDCL 15-6-41(b). Dismissal is appropriate when the plaintiff's conduct is egregious. Rotenberger v. Burghduff; 2007 SD 7, ¶ 17, 727 N.W.2d 291, 295 n. 6 (citing Swenson, 1999 SD 61, ¶ 21, 594 N.W.2d at 345 (citing Devitt, 1996 SD 71, ¶ 16, 551 N.W.2d at 301)). A ......
  • Masad v. Weber, No. 25034.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...statutes is a question of law. Nelson v. Promising Future, Inc., 2008 SD 130, ¶ 5, 759 N.W.2d 551, 553 (quoting Rotenberger v. Burghduff, 2007 SD 7, ¶ 8, 727 N.W.2d 291, 294). Similarly, "[t]he interpretation of a contract is a question of law[.]" Kernelburner, L.L.C. v. MitchHart Mfg., Inc......
  • Kauth v. Bartlett, No. 24414.
    • United States
    • Supreme Court of South Dakota
    • March 12, 2008
    ...has been made." Id. [¶ 9.] Issues regarding statutory interpretation are questions of law reviewed de novo. Rotenberger v. Burghduff, 2007 SD 7, ¶ 8, 727 N.W.2d 291, 294 (quoting State v. $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94). "Statutes are to be construed to give effe......
  • State v. Jucht, No. 26074.
    • United States
    • Supreme Court of South Dakota
    • September 19, 2012
    ...under the de novo standard. State v. Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920 (quoting Rotenberger v. Burghduff, 2007 S.D. 7, ¶ 8, 727 N.W.2d 291, 294). [¶ 23.] SDCL 22–3–3 must be read in conjunction with SDCL 22–3–3.1, which provides that the distinction between a principal and an ......
  • Request a trial to view additional results
14 cases
  • Eischen v. Wayne Tp., No. 24438.
    • United States
    • Supreme Court of South Dakota
    • January 2, 2008
    ...is mandated by the statute. SDCL 15-6-41(b). Dismissal is appropriate when the plaintiff's conduct is egregious. Rotenberger v. Burghduff; 2007 SD 7, ¶ 17, 727 N.W.2d 291, 295 n. 6 (citing Swenson, 1999 SD 61, ¶ 21, 594 N.W.2d at 345 (citing Devitt, 1996 SD 71, ¶ 16, 551 N.W.2d at 301)). A ......
  • Masad v. Weber, No. 25034.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...statutes is a question of law. Nelson v. Promising Future, Inc., 2008 SD 130, ¶ 5, 759 N.W.2d 551, 553 (quoting Rotenberger v. Burghduff, 2007 SD 7, ¶ 8, 727 N.W.2d 291, 294). Similarly, "[t]he interpretation of a contract is a question of law[.]" Kernelburner, L.L.C. v. MitchHart Mfg., Inc......
  • Kauth v. Bartlett, No. 24414.
    • United States
    • Supreme Court of South Dakota
    • March 12, 2008
    ...has been made." Id. [¶ 9.] Issues regarding statutory interpretation are questions of law reviewed de novo. Rotenberger v. Burghduff, 2007 SD 7, ¶ 8, 727 N.W.2d 291, 294 (quoting State v. $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94). "Statutes are to be construed to give effe......
  • State v. Jucht, No. 26074.
    • United States
    • Supreme Court of South Dakota
    • September 19, 2012
    ...under the de novo standard. State v. Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920 (quoting Rotenberger v. Burghduff, 2007 S.D. 7, ¶ 8, 727 N.W.2d 291, 294). [¶ 23.] SDCL 22–3–3 must be read in conjunction with SDCL 22–3–3.1, which provides that the distinction between a principal and an ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT