William Rotenberger v. Lex Burghduff

<P>[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.
<P>FACTS
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[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.
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[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 to the attorneys for both Burghduff and Rotenberger.
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[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.
<P>[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.
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[6.] Burghduff appeals and raises the following issues:
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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).
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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.
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3. Whether the dismissal of the action for lack of prosecution under SDCL 15-11-112 and/or SDCL 15-6-41(b)3 is a dismissal with prejudice.
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[¶19.] Affirmed.

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